Summary
In Peterson v. Hickman, 2002 WL 1578933 (N.D. Cal. July 15, 2002) specifically held that there is no tolling for the interval following denial of a petition by a state appellate court and the filing of the next petition in a lower state court.
Summary of this case from Johnson v. AlamagerOpinion
No. C 01-5230 CRB (PR), (Doc # 4)
July 15, 2002
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION AS UNTIMELY
Petitioner, a state prisoner currently incarcerated at Mule Creek State Prison in Ione, California, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on January 8, 2002, the court noted that the petition appeared time-barred by the pertinent one-year limitation period and ordered respondent to either move to dismiss the petition on the ground that it is untimely, or inform the court that respondent is of the opinion that such a motion is unwarranted in this case. Respondent promptly moved to dismiss the petition on the ground that it is time-barred under 28 U.S.C. § 2244 (d). Petitioner did not file an opposition.
BACKGROUND
Petitioner was convicted of multiple counts of child molestation and related offenses by a jury in the Superior Court of the State of California in and for the County of Marin. On or about June 15, 1992, he was sentenced to state prison for 25 years.
On July 8, 1993, the California Court of Appeal affirmed the judgment of conviction and, on September 29, 1993, the Supreme Court of California denied review. Petitioner did not seek a writ of certiorari from the Supreme Court of the United States.
On August 19, 1993, while his petition for direct review was pending in the state supreme court, petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. It was denied on October 27, 1993.
On September 13, 2000, petitioner filed a new petition for a writ of habeas corpus in the Marin County Superior Court. It was denied on November 13, 2000.
On March 26, 2001, petitioner filed his petition in the California Court of Appeal. It was denied on April 5, 2001.
On May 14, 2001, petitioner filed his petition in the Supreme Court of California. It was denied on October 31, 2001.
On December 26, 2001, petitioner filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254.
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 limitation on petitions for a writ of habeas corpus filed by state prisoners. 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). 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 limitation." Id. § 2244(d)(2).
AEDPA's one-year limitation period did not start running earlier than April 24, 1996. A state prisoner with a conviction finalized before April 24, 1996, such as petitioner, therefore generally had until April 24, 1997 to file a federal habeas petition. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). The instant petition was not filed until December 26, 2001.
The petition may nonetheless be timely if the limitation period was tolled under § 2244(d)(2) for a substantial period of time. In Nino v. Galaza, the Ninth Circuit concluded that AEDPA's limitation period is tolled 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) (citation and internal quotation marks omitted). Applying these principles to California's post-conviction procedure, the court held that the limitation period is tolled for prisoners challenging California convictions or sentences "from the time the first state habeas is filed until the California Supreme Court rejects the petitioner's final collateral challenge." Id. at 1006 (footnotes omitted).
Accord Carey v. Saffold, 122 S.Ct. 2134, 2138 (2002).
The rationale of Nino does not entitle petitioner to tolling under § 2244(d)(2) for the time period between October 27, 1993 (the date on which the state court of appeal denied petitioner's first state habeas) and September 13, 2000 (the date on which petitioner filed a new habeas petition in state superior court), however. Nino made clear that the limitation period "remains tolled during the intervals between the state court's disposition of a state habeas petition and the filing of a petition at the next state appellate level." Id. at 1005 (emphasis added). Its reasoning does not extend to where successive petitions were filed at the same appellate level in the state's highest court see Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001) (finding that limitation period was not tolled during gap between successive state habeas petitions filed in the state's highest court), or to where, as here, there was a time gap between a first and second set of state habeas petitions see Smith v. Duncan, 274 F.3d at 1250 (finding that limitation period was not tolled during gap between first set of state habeas petitions (superior court, court of appeal and supreme court) and second set of state habeas petitions (superior court, court of appeal and supreme court)).
Accord Carey, 122 S.Ct. at 2139-41 (finding that California prisoner is entitled to tolling for time interval between a lower court decision and the filing of a petition for review in a higher court).
In any event, petitioner's nearly seven-year delay in filing a new petition in state superior court (September 13, 2002) after the state court of appeal denied his first petition (October 27, 1993) precludes any tolling for that time period. The Supreme Court recently held that a California prisoner is not entitled to tolling under § 2244(d)(2) if he delayed "unreasonably" in seeking further review of his petition. See Carey v. Saffold, 122 S.Ct. 2134, 2139-41 (2002). Although this non-precise standard "may make it more difficult for federal courts to determine just when a [habeas petition] . . . comes too late" id. at 2139, this is not such a case. A seven-year delay is unreasonable on its face. And petitioner sets forth no argument or evidence to compel a different conclusion.
The one-year limitation period began running against petitioner on April 24, 1996 and ran unabated until it expired on April 24, 1997. The federal petition filed on December 26, 2001 is untimely.
It matters not that petitioner appears to have diligently pursued his second habeas petition in the state courts from September 13, 2000 until October 31, 2001. A state habeas petition filed after AEDPA's statute of limitation ended cannot toll the limitation period. See Jiminez, 276 F.3d 478, 482 (9th Cir. 2001). Section 2244(d)(2) cannot "revive" the limitation period once it has run (i.e., restart the clock to zero); it can only serve to pause a clock that has not yet fully run. "Once the limitations period is expired, collateral petitions can no longer serve to avoid the statute of limitations." Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998); accord Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000).
CONCLUSION
For the foregoing reasons, respondent's motion to dismiss the petition as untimely (doc # 4) is GRANTED.The clerk shall enter judgment in favor respondent and close the file.
SO ORDERED.