Opinion
No. C 02-4185 WHA (PR)
August 11, 2003
JUDGMENT
The court having entered a ruling today granting respondent's motion to dismiss, judgment is entered in favor of respondent. Petitioner shall obtain no relief by way of his petition.
IT IS SO ORDERED.
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
This is a habeas case brought pro se by a state prisoner under 28 U.S.C. § 2254. The court issued an order to show cause in which it noted a possible statute of limitations issue. See 28 U.S.C. § 2244(d)(1).
Respondent has filed a motion to dismiss on grounds the petition is barred by the statute of limitations. Petitioner has filed an opposition in which he explains why he believes the case is not barred.
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)(l). 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).
Respondent asserts, and petitioner does not dispute, that he was convicted in 1996. He did not file a timely appeal. A November 12, 1999, motion for relief from default to allow him to file a late appeal was denied by the California Court of Appeal on December 7, 1999.
The one-year federal limitations period generally will run 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) (emphasis added). According to Rule 31(a) of the California Rules of Court, petitioner had sixty days from the date of judgment to file a notice of appeal. The federal statute of limitations thus began running on February 15, 1997, and expired on February 15, 1998, unless another starting date for the statute of limitations is applicable or tolling applies. This petition was not filed until September 3, 2002.
Petitioner does not argue for a different starting date than completion of the time for direct review, but instead attacks the alleged failure of the California courts to consider fully all the circumstances "in cases of this ilk." Whether this is true or not, it does not go to whether this petition was timely. Petitioner also alleges that he does not speak English, causing a delay until he could obtain help from other inmates, and that he apparently had difficulty in obtaining transcripts. No time periods are specified and no details are provided. Such general allegations, with no indication of how long petitioner was impeded, are insufficient to allow equitable tolling in this case, especially given the lengthy delays involved here. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (petitioner bears the burden of showing that this "extraordinary exclusion" should apply to him).
Petitioner does not dispute that he did not file his first state habeas petition, which would statutorily toll the running of the statute, see 28 U.S.C. § 2244(d)(2), until June 19, 2001, more than three years after expiration of the federal statute of limitations. (Filing the state petition did not restart the federal limitations period. Ferguson v. Palmateer 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed," even if state petition was timely)).
CONCLUSION
Respondent's motion to dismiss (doc 5) is GRANTED. The case is DISMISSED. The clerk shall close the file.IT IS SO ORDERED.