Opinion
No. C 02-1979 MMC (PR), (Docket No. 4)
October 2, 2002
ORDER GRANTING MOTION TO DISMISS PETITION AS UNTIMELY
Clifton Freeman ("petitioner"), a California prisoner, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. After an initial review, the Court ordered respondent to either file a motion to dismiss the petition as untimely under 28 U.S.C. § 2244 or indicate that such a motion is not warranted. Respondent filed a motion to dismiss the petition as untimely, which was supplemented shortly thereafter, and petitioner subsequently filed an opposition.
BACKGROUND
In 1985, in the Santa Clara County Superior Court, petitioner pled guilty to second degree murder and was sentenced to fifteen years to life in state prison. Petitioner did not file a direct appeal. On December 30, 1996, petitioner filed a petition for a writ of habeas corpus in the Santa Clara County Superior Court, which petition was denied on February 13, 1997. Petitioner filed his next habeas petition in the California Court of Appeal on May 7, 2001, and it was denied on August 21, 2001. On September 27, 2001, petitioner filed a habeas petition in the Supreme Court of California, and it was denied on January, 29, 2002. On April 11, 2002, petitioner filed the instant petition in the United States District Court for the Eastern District of California, which transferred the petition to this Court.
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 writs 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: A) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (C) 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 (D) the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244 (d)(1).
Petitioner contends that the one-year limitations period commenced in this case after the Supreme Court of California denied his habeas petition, which denial, according to petitioner, represents the time at which his conviction became "final" under § 2244(d)(1)(A). Section 2244(d)(1)(A), however, clearly provides that the limitations period begins upon the completion of "direct review" (emphasis added). Where, as here, a petitioner does not seek direct review by the state court of appeal or the state supreme court, the limitation period will begin running the day after the date on which the time to seek such review expires. See Smith v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002). In the instant case, the time for seeking direct review of petitioner's 1985 conviction expired well before April 24, 1996, the date on which the AEDPA limitations became effective. As a result, petitioner had until April 24, 1997 to file a federal habeas petition. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). The instant federal petition is deemed filed nearly five years later, on March 22, 2002, when petitioner signed the petition. See Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2001) (holding pro se prisoner's federal habeas petition is deemed filed when prisoner delivers petition to prison authorities for mailing), vacated and remanded on other grounds, Carey v. Saffold, 122 S.Ct. 2134 (2002). As a consequence, in the absence of nearly five years of tolling, the petition is untimely.
The running of the one-year limitations period is tolled for the 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 "as long as the ordinary state collateral review process is `in continuance" — i.e., "until the completion of that process." Carey v. Saffold, 122 S.Ct. 2134, 2138 (2002). In other words, until the application has achieved final resolution through the state's post-conviction procedures, it remains, by definition, "pending." Id. The effect, in California, is that the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge, as long as the petitioner did not "unreasonably delay" in seeking review. See id. at 2139-40; see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (holding 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"). If the delay in filing the state petition was unreasonable, the petition is not deemed "pending" during the period of delay. Carey, 122 S.Ct. at 2141 (remanding to Court of Appeals to determine whether 4 1/2 month delay in filing state court petition was unreasonable).
Here, when petitioner filed his first state court habeas petition in the state superior court in December 1996, eight months of the limitations period had elapsed. After that petition was denied in February 1997, petitioner did proceed to the California Court of Appeal. He did not do so, however, until May 2001, over four years later. The Ninth Circuit has "yet to determine the minimum amount of time" that constitutes an unreasonable delay under California law. Bennett v. Mueller, 296 F.3d 752, 758 (9th Cir. 2002). Nevertheless, the four-year delay between the state superior court's denial of his habeas petition in 1997 and the filing of his petition in the California Court of Appeal, which delay petitioner does not explain, must be considered unreasonable. See, e.g., id. (holding delay of six years is "certainly" an unreasonable delay under California law). This conclusion is bolstered by the fact that the Supreme Court of California summarily denied the habeas petition with a citation to In re Robbins, 18 Cal.4th 770, 780 (1998), which sets forth California's rule that a habeas petition filed after unreasonable delay must be denied as untimely. Because the four-year delay between petitioner's filings was unreasonable, the AEDPA limitations period is not tolled during that time. See Carey, 122 S.Ct. at 2141. As there is no other apparent basis for tolling the limitations period, the Court concludes 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.
This order terminates Docket No. 4.
The Clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED respondent's motion to dismiss the instant petition as untimely is GRANTED and this action is DISMISSED.