Opinion
CV. 03-1579-MA.
August 11, 2004
Richard L. Keller, Ontario, Or., Petitioner, pro se.
Hardy Myers, Attorney General, Lynn David Larsen, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.
OPINION ORDER
Petitioner, an inmate in the custody of the Oregon Department of Corrections, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner's habeas corpus petition (#1) is denied.
LEGAL STANDARDS
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), a petitioner has one year from the date a direct appeal is final to file a federal habeas corpus petition. 28 U.S.C. § 2244(d). "The 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 shall not be counted toward any period of limitations. . . ." 28 U.S.C. § 2244(d)(2) (emphasis added). "Tolling during the time a state prisoner is pursuing his post-conviction remedies allows the state courts to have the unfettered first opportunity to review the prisoner's claim and to provide any necessary relief."Nino v. Galaza, 183 F.3d 1003, 1007 (9th Cir. 1999).BACKGROUND
On August 18, 1987, petitioner pled guilty to Robbery in the First Degree. While awaiting sentencing, petitioner was taken into federal custody and subsequently pled guilty to bank robbery. Petitioner was sentenced in federal court and immediately transferred to a federal penitentiary.
On or about April 1, 1998, petitioner was released from federal custody and returned to Oregon. On June 30, 1998, petitioner appeared in state court for sentencing. At the sentencing hearing, petitioner argued that his robbery conviction should be dismissed on the basis that the State of Oregon had violated the Interstate Agreement on Detainers Act (IADA) by failing to transport petitioner to Oregon to be sentenced in a timely manner. The Honorable Charles B. Guinasso denied petitioner's motion to dismiss and imposed a five year term of probation. The probationary sentence was entered into the court register on July 23, 1998. Petitioner did not appeal the entry of the sentence or the denial of his motion to dismiss the conviction. (See Resp. Exh. 121 at 4.)
On October 14, 1999, Judge Guinasso revoked petitioner's probation and imposed a 20-year sentence, with a five-year minimum. On November 15, 1999, petitioner appealed the revocation of his probation, but voluntarily dismissed the appeal on February 22, 2000. (Resp. Exhs. 112 121 at 5.)
On November 1, 2000, petitioner filed a petition for postconviction relief. Petitioner alleged that the trial court erred in several respects and that he received ineffective assistance at the 1987 plea proceeding, his 1998 sentencing hearing, and the 1999 probation violation hearing and appeal. On November 13, 2001, the state court denied post-conviction relief. The Oregon Court of Appeals summarily affirmed and the Oregon Supreme Court denied review.
On or about November 13, 2003, petitioner filed the instant proceeding challenging the constitutionality of his robbery conviction on the basis that the State of Oregon violated the IADA and his right to a speedy trial.
DISCUSSION
As noted above, petitioner seeks to challenge the legality of his robbery conviction in this proceeding on the basis that the State of Oregon violated the IADA and his right to a speedy trial. Those issues were raised when petitioner was initially sentenced to a term of probation in 1998. Petitioner's probationary sentence was entered in the trial court register on July 23, 1998. Under Oregon law, petitioner had 30 days in which to file an appeal. O.R.S. 138.071. Because petitioner did not appeal that sentence, the expiration of the time for seeking such review, August 24, 1998, triggered the one-year limitation period. Hence, petitioner should have filed the instant proceeding on or before August 24, 1999. Petitioner failed to do so. No state proceeding was pending between August 24, 1998, and August 24, 1999, so as to toll the limitation period. See 28 U.S.C. § 2244(d)(2). Accordingly, his federal habeas petition is time-barred.Petitioner argues that October 13, 1999, is the trigger date for purposes of the limitation period. That date, however, is the date of the revocation of petitioner's probation. The propriety of the revocation of petitioner's probation is not at issue in this proceeding. Rather, petitioner seeks the dismissal of his original robbery conviction on the basis that the nearly eleven year delay between petitioner's guilty plea and sentencing violated his constitutional rights. That issue was raised at his original sentencing and triggered the limitation period. The subsequent revocation of petitioner's probation does not resurrect petitioner's constitutional claims for the purposes of the limitation period.
CONCLUSION
Based on the foregoing, petitioner's habeas corpus petition (#1) is denied.