Hayes v. Gordon

Full title: WILEY WAYNE HAYES, Petitioner, v. JO ANN GORDON, Respondent

Court: United States District Court, N.D. California

Date published: Jan 22, 2003

No. C 02-4631 WHA (PR), (Doc 7) (N.D. Cal. Jan. 22, 2003)

Opinion

No. C 02-4631 WHA (PR), (Doc 7)

January 22, 2003

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS

WILLIAM ALSUP, United States District Judge.

This is a habeas case filed pro se by a state prisoner. Respondent has moved to dismiss on grounds the petition is barred by the statute of limitations. The motion is unopposed.

STATEMENT

Petitioner pled nolo contendere to a charge of assault with a deadly weapon. On February 24, 1999, he was sentenced to a twelve year term in state prison. He did not file a direct appeal. His state habeas petitions, the first of which was filed on January 10, 2002, were also denied.

DISCUSSION

The statute of limitations is codified at 28 U.S.C. § 2244(d). Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year time limit. Id. § 2244(d)(2).

It is undisputed that petitioner was convicted in 1999 and did not file a direct appeal. It is also undisputed that he did not file his first state habeas petition until 2002. It is thus clear that the state petitions, having been filed after expiration of the federal statute of limitations period, did not toll it. This petition was not filed under September 25, 2002, long after expiration of the one-year statute of limitations. The petition is not timely.

CONCLUSION

Respondent's motion to dismiss (doc 7) is GRANTED. The petition is DISMISSED. The clerk shall close the file.

IT IS SO ORDERED.