Opinion
No. C 00-4525 MMC (PR)
July 27, 2001
ORDER GRANTING MOTION TO DISMISS PETITION AS UNTIMELY
Petitioner, a California prisoner, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. After finding that the petition contained cognizable claims, the Court ordered respondent to show cause why it should not be granted. Respondent filed a motion to dismiss the petition as untimely under 28 U.S.C. § 2244. Petitioner has not filed an opposition or a traverse.
BACKGROUND
In 1996, in Alameda County Superior Court, petitioner was convicted and sentenced for voluntary manslaughter, receiving stolen property and use of a firearm. Petitioner did not appeal his conviction or sentence. On November 10, 1998, he filed his first state habeas petition in that court, which petition was denied on June 15, 2000. Later that year, he filed an unsuccessful habeas petition in the California Court of Appeal, and on December 5, 2000, the Supreme Court of California denied his final state habeas petition.
Although this petition was file-stamped November 18, 1998, it is deemed filed on November 10 because that is the date the petition was signed and presumptively handed to prison authorities for mailing. See Saffold v. Newland, No. 99-15541, slip op. 6513, 6525 (9th Cir. May 23, 2001).
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996, and imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences now must be filed within one year from "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244 (d)(1)(A). Here, judgment was entered on September 13, 1996. As petitioner did not file any direct appeal, there was no "direct review" of his case. Under state law, petitioner had sixty days from the date of the entry of judgment to file a notice of appeal. See California Rules of Court 2. As a result, petitioner's "time for seeking" direct review expired, and the one-year limitations period for filing a federal habeas petition began, on November 12, 1996. On November 4, 2000, petitioner filed the instant federal petition, almost three years after the limitations period expired. Absent tolling, therefore, the petition is untimely.
In rare instances, not presented by the instant petition, the limitation period may run from a date later than the date on which the judgment became final. See U.S.C. § 2244(d)(1)(B)-(D).
The running of the one-year limitations period is tolled for the time period during which a properly filed application for post-conviction or other collateral review is pending in state court. See id. 28 U.S.C. § 2244 (d)(2). An application for collateral review is "pending" in state court for "`all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.`" Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (quoting Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999)). Here, petitioner collaterally challenged his conviction in the state courts from November 10, 1998 to December 5, 2000. However, the one-year limitation period was not tolled under § 2244(d)(2) during this period because it had already expired on November 12, 1997, one year after it began to run. Section 2244(d)(2) cannot "`revive' the limitation period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitation period is expired, collateral petitions can no longer serve to avoid a statute of limitation." Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998); see, also Nino, 183 F.3d at 1006 (holding that the statute is not tolled under § 2244(d)(2) between the conclusion of direct review and the first state collateral challenge). The record indicates no other basis for tolling, nor does petitioner argue any other basis applies. As a result, the petition is untimely.
CONCLUSION
In light of the foregoing, respondent's motion to dismiss the instant petition as untimely is GRANTED and this action is DISMISSED. All pending motions are terminated. The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED respondent's motion to dismiss the instant petition as untimely is GRANTED and this action is DISMISSED. All pending motions are TERMINATED.