Opinion
Case No. 2:04-CV-657 TS.
December 8, 2004
ORDER
Petitioner, Rene Cardona, asks for habeas corpus relief. See 28 U.S.C. § 2254 (West 1994 Supp. 2004). Because the statute of limitation has run, the Court denies his petition.
Petitioner's state conviction became final on February 28, 1999 — the deadline he missed for filing with the Utah Supreme Court a petition for writ of certiorari. On that date, the one-year period of limitation began running on Petitioner's right to bring a federal habeas petition. Even so, Petitioner waited until more than five years and four months later, on June 29, 2004, to file his current federal habeas petition. By federal statute, that was more than four years and four months too late. See id. § 2244(d) (Supp. 2004).
By statute, the one-year period of limitation is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Id. § 2244(d) (2). Equitable tolling is also available "`in rare and exceptional circumstances.'" Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citation omitted). However, Petitioner explicitly states in his petition that he did not file a state post-conviction application and has not argued that any equitable circumstances rescue him from the period of limitation's effect.
Accordingly, the current petition before the Court was filed past the one-year period of limitation. And, neither statutory exceptions nor equitable tolling apply to save Petitioner from the period of limitation's operation.
IT IS THEREFORE ORDERED that Petitioner's petition is denied because it is barred by the applicable period of limitation.