Opinion
No. C 02-380 SI (pr)
July 25, 2002
JUDGMENT
This action is dismissed because the petition for writ of habeas corpus was not filed before the statute of limitations deadline passed.
IT IS SO ORDERED AND ADJUDGED.
INTRODUCTION
Ted Lewis, Jr., a prisoner incarcerated at the Salinas Valley State Prison, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition as untimely under 28 U.S.C. § 2244 (d). Lewis has opposed the motion. For the reasons discussed below, the court will grant respondent's motion and dismiss the petition.
BACKGROUND
Following a court trial in Lake County Superior Court, Lewis was convicted of assault by force likely to produce great bodily injury and battery resulting in serious bodily injury. See Cal. Penal Code §§ 242, 243(d), 245(a)(1). The court also found that Lewis had suffered a prior serious felony conviction and a prior prison term. He was sentenced December 1998 to a term of 16 years in state prison. He appealed. The California Court of Appeal affirmed his conviction on May 11, 1999. He did not file a petition for review in the California Supreme Court. On June 28, 2001, Lewis filed a petition for writ of habeas corpus in the California Supreme Court, it was denied on October 31, 2001.
Lewis signed his federal habeas petition on December 31, 2001, and it was stamped "filed" in this court on January 23, 2002. (There is no readable postmark on the envelope in which the petition was mailed.) This court will use January 23, 2002, as the filing date, although the court's conclusion that the petition was not timely filed would not change even if the signature date was used as the filing date.
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 writ of habeas corpus filed by state prisoners. Generally, a petition must be filed within a year of the date on which the judgment became final, although a delayed start of the limitations period also is available. Lewis argues that his case is governed by the delayed start limitations period under 28 U.S.C. § 2244 (d)(1)(C) because his claim is based on the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), which was announced on June 26, 2000. Section 2244(d)(1)(C) provides that the limitations period begins on "the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Section 2244(d)(1)(C)'s delayed limitations period does not apply to Lewis because the Apprendi ruling does not apply retroactively on collateral review. See United States v. Sanchez-Cervantes, 282 F.3d 664, 666-67 (9th Cir. 2002); see also Rees v. Hill, 286 F.3d 1103 (9th Cir. 2002). Moreover, as respondent points out, even if this delayed start limitations period applied to Lewis, his federal petition would be untimely because his neither his federal nor his state habeas petitions were filed within a year of the Apprendi decision.
The timeliness of Lewis' petition thus is considered under the general limitations period found in § 2244(d)(1)(A). A petition filed by a prisoner challenging a non-capital state conviction or sentence must be filed within one year from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. See 28 U.S.C. § 2244 (d)(1)(A). Here, the California Court of Appeal affirmed the judgment on May 11, 1999 and the direct review concluded on June 20, 1999, when the 40-day period for petitioning the California Supreme Court for review expired. See Cal. Rules of Court 24(a), 28. Lewis thus presumptively had to file his federal habeas petition no later than June 20, 2000. See Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001). Lewis' federal petition was not filed until January 23, 2002, more than eighteen months after the deadline. Unless Lewis is entitled to some tolling, his petition is time-barred.
The next step is to determine whether the one-year period should be tolled under the text of the statute which provides for tolling for the time period during which a properly filed application for post-conviction or other collateral review is pending in state court. See 28 U.S.C. § 2244 (d)(2). Lewis' one-year limitations period started on June 20, 1999, and his state habeas petition was not filed until June 28, 2001. He is not entitled to any statutory tolling for the pendency of the state habeas petition because it was not filed during the year following the start of the limitations period.
The final step is to determine whether equitable tolling applies. Equitable tolling of the limitation period is available upon a showing of extraordinary circumstances beyond a petitioner's control which prevented him from timely filing the petition. See e.g., Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (equitable tolling will not be available in most cases because extensions of time should only be granted if extraordinary circumstances beyond prisoner's control make it impossible for him to file petition on time), cert. denied, 523 U.S. 1, and cert. denied, 523 U.S. 1061 (1998), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999). Lewis does not show any basis for equitable tolling of the limitations period.
Lewis' federal petition was filed on January 23, 2002, more than eighteen months after the deadline to do so. The petition must be dismissed because it was not timely filed under 28 U.S.C. § 2244 (d)(1).
CONCLUSION
Respondent's motion to dismiss is GRANTED. The petition is dismissed because it was not timely filed. The clerk shall close the file.
IT IS SO ORDERED.