Opinion
No. C 01-4158 CRB (PR), Doc #6
December 10, 2002
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION AS UNTIMELY
Respondent moves to dismiss the instant petition for a writ of habeas corpus as untimely following the Supreme Court's recent decision in Carey v. Saffold, 122 S. Ct. 2134 (2002). Petitioner did not file an opposition.
BACKGROUND
Petitioner was convicted of second degree burglary by a jury in the Superior Court of the State of California in and for the County of Santa Clara, and was found to have suffered four prior felony convictions. On February 15, 1996, he was sentenced to 25 years to life under California's Three Strikes Law.
On July 9, 1998, the California Court of Appeal affirmed the judgment of conviction and, on October 21, 1998, the Supreme Court of California denied review. Petitioner did not seek a writ of certiorari from the Supreme Court of the United States.
On January 8, 1999, petitioner filed a petition for a writ of habeas corpus in the Santa Clara County Superior Court asking that the court reconsider its sentence in light of People v. Romero, 13 Cal.4th 497 (1996) (holding that sentencing courts have discretion to dismiss allegations of prior felony "strike" convictions brought under Three Strikes Law). It was denied on January 26, 1999.
On January 24, 2000, petitioner filed a second petition for a writ of habeas corpus in the Santa Clara County Superior Court claiming that application of the Three Strikes Law to his case violated his state and federal rights to due process. It was denied on February 15, 2000 as an impermissible successive petition.
On May 3, 2000, petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal claiming that application of the Three Strikes Law to his case violated his state and federal rights to due process and to be free from ex post facto laws. It was summarily denied on June 19, 2000.
On October 2, 2000, petitioner filed his petition for a writ of habeas corpus in the Supreme Court of California claiming that application of the Three Strikes Law to his case violated his state and federal rights to due process and equal protection, as well as his right to be free from ex post facto laws. It was summarily denied on March 28, 2001.
On November 7, 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).
A state prisoner with a conviction finalized after April 24, 1996, such as petitioner, ordinarily must file his federal habeas petition within one year of the date his process of direct review came to an end. See Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). Because petitioner did not seek a writ of certiorari from the Supreme Court of the United States, his process of direct review came to an end at the conclusion of all direct criminal appeals in the state system followed by the expiration of the time allotted for filing a petition for a writ of certiorari. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The one-year limitation period accordingly began to run against petitioner on January 20, 1999, ninety-one days after the Supreme Court of California denied his petition for direct review. See id. (noting that Supreme Court Rule 13(1) provides 90 days to file petition for certiorari after entry of order of state high court denying review); see also Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (one-year period calculated according to general rule for counting time in federal courts, Federal Rule of Civil Procedure 6(a)). The instant petition was not filed until November 7, 2001.
The petition may nonetheless be timely if the limitation period was tolled under § 2244(d)(2) for a substantial period of time. As noted earlier, AEDPA's one-year limitation period is tolled under § 2244(d)(2) for 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.'" Dictado v. Ducharme, 244 F.3d 724, 726 (9th Cir. 2001) (quoting 28 U.S.C. § 2244(d)(2)). In Carey v. Saffold, 122 S. Ct. 2134 (2002), the Supreme Court held that the limitation period is also tolled during the time between a lower state court's decision and the filing of a notice of appeal to a higher state court. Carey, 122 S. Ct. at 2138. In California, where prisoners generally use the state's "original writ system," this means that the limitation period remains tolled during the intervals between a state court's disposition of an original state habeas petition and the filing of a further original state habeas petition in a higher court, provided the prisoner did not delay unreasonably in seeking review in the higher court. See id. at 2139-41.
The rationale of Carey does not entitle petitioner to tolling under § 2244(d)(2) for the time period between January 26, 1999 (the date on which the state superior court denied petitioner's first state habeas) and January 24, 2000 (the date on which petitioner filed his second habeas petition in state superior court, which was denied as successive) because petitioner was not seeking review in a higher court. The Supreme Court noted that a California prisoner who, like petitioner, files a "subsequent and similar petition in another lower court (say, another trial court) will likely find consideration of that petition barred as successive." Carey, 122 S. Ct. at 2139 (citing In re Clark, 5 Cal.4th 750, 767-71 (1993)). By contrast, a prisoner who files the same petition in a higher, reviewing court will find that he can obtain appellate review.Id. (citing In re Resendiz, 25 Cal.4th 230, 250 (2001). Only the latter is entitled to tolling for the interval between the denial of the first petition and the filing of the next one. See id. at 2139-41; see also Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir. 1999) (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").
Even before Carey, the Ninth Circuit declined to extend "interval tolling" to intervals other than 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. See e.g., 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); Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002) (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)).
Accordingly, the one-year limitation period began running against petitioner the day after the Santa Clara County Superior Court denied his first habeas petition on January 26, 1999, and ran unabated until January 24, 2000 (362 days), when petitioner filed his second habeas petition in the Santa Clara County Superior Court. Even if the limitation period was then tolled under § 2244(d)(2) until 30 days after the Supreme Court of California denied petitioner's final habeas petition on March 28, 2001, see Bunney v. Mitchell, 262 F.3d 973, 973-74 (9th Cir. 2001) (tolling under § 2244(d)(2) ends 30 days after the Supreme Court of California's denial of the final habeas petition is filed because that is when the denial becomes "final" under California Rule of Court 24), petitioner had just three days after April 27, 2001 to file a timely federal petition. He did not file until November 7, 2001. The instant petition is untimely.
The court need not decide respondent's claim that petitioner's delays of two and a half and three months in filing his habeas petition at the next state court levels was unreasonable under Carey v. Saffold.Cf. Saffold v. Carey, No. 99-15541, 2002 WL 31702237, at *4 (9th Cir. Dec. 4, 2002) (concluding that four and a half month delay not unreasonable where state court's denial did not appear to be on untimeliness grounds).
CONCLUSION
For the foregoing reasons, respondent's motion to dismiss the petition as untimely (doc #6) is GRANTED.The clerk shall enter judgment in favor of respondant and close the file.