Opinion
No. Civ. 01-0114 MV/RLP
December 17, 2001
Attorneys for Plaintiff Calvin Dean Peters, pro se.
Attorney for Defendant Margaret McLean.
MEMORANDUM OPINION AND ORDER ADOPTING IN PART THE MAGISTRATE JUDGES PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Petitioners Objections to the Magistrate Judges Proposed Findings and Recommended Disposition [Doc. No. 25], recommending that Petitioners petition for a writ of habeas corpus under 28 U.S.C. § 2254 [Doc. No. 1] be dismissed and that all of petitioners other pending motions [Doc. Nos. 3, 14, 15, 21, and 23] be denied as moot.
Upon conducting a de novo review of the record, the Court finds that the Proposed Findings and Recommended Disposition will be adopted in part; that the petition for habeas corpus under 28 U.S.C. § 2254 will be dismissed as untimely; and that the remaining motions will be denied.
BACKGROUND
After a jury trial in 1995, Petitioner was convicted of several violent felonies. The trial court entered judgment on October 19, 1995, and entered an amended judgment on February 22, 1996. Petitioner is serving a 92-year sentence. Petitioner took a timely appeal, and his conviction was affirmed on June 19, 1997. See State v. Peters, 944 P.2d 896 (N.M.Ct.App.), cert. denied 942 P.2d 189 (N.M. 1997). Petitioners state petition for certiorari was denied on August 12, 1997. Petitioner then had 90 days to file an appeal to the United States Supreme Court, but did not do so. Petitioner filed a petition for a writ of habeas corpus in state court on October 16, 1998, which was denied on April 8, 1999. However, petitioner did not receive the April 8, 1999 Order denying his petition for state habeas corpus relief.
Therefore, on November 22, 1999, the state court entered an order vacating its prior order, and reinstating the time for appeal.
Mr. Peters was required to file a petition for certiorari in the state supreme court by December 22, 1999. On December 21, 1999, the state supreme court received petitioners petition for certiorari. However, the state supreme court rejected the petition as untimely (apparently, the state supreme court was unaware of, or declined to acknowledge, the state courts reinstatement of the time for appeal.) Petitioner then filed a motion for extention of time, which the state supreme court denied on January 26, 2001 . Petitioner filed his petition for a writ of habeas corpus in this Court on January 29, 2001 .
ANALYSIS
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) contains a statute of limitations provision applicable to habeas corpus petitions filed by persons who are in custody pursuant to the judgment of a state court. That provision requires a petition for habeas corpus filed under 28 U.S.C. § 2254 to be filed within one year of the date on which the state judgment became final. See 28 U.S.C. § 2244(d)(1)(A).
The statute also provides for the limitations period to run from certain other dates, which are not applicable here. See 28 U.S.C. § 2244(d)(1)(B)-(D).
The limitation period in this case began to run on November 10, 1997, when the time for petitioner to seek certiorari in the United States Supreme Court from the affirmance of his conviction expired. See Kapral v. United States, 166 F.3d 565, 570-71 (3rd Cir. 1999) (holding that a judgment becomes final when the Supreme Court affirms the conviction and sentence on the merits, or denies a timely filed petition for certiorari, or when the time for filing a petition for certiorari expires) (citing United States v. Simmonds, 111 F.3d 737, 744 (10 th Cir. 1997)). Petitioners timely filed petition for state habeas corpus relief tolled the limitations period. See 28 U.S.C. § 2244(d)(2). He filed his state petition on October 16, 1998, leaving twenty-five days remaining in the limitation period. Petitioners state petition for certiorari appears to have been timely; nonetheless, the state court denied the petition for certiorari and subsequently denied petitioners motion for extention of time on January 26, 1999. Adding the twenty-five days remaining on the limitation period, petitioner had until February 21, 2000 to file his § 2254 petition. His § 2254 petition filed on January 29, 2001 , is, therefore, time-barred.
CONCLUSION
IT IS THEREFORE ORDERED THAT: the Magistrate Judges Proposed Findings and Recommendation [Doc. No. 25] are hereby ADOPTED in part; Petitioners for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. No. 1] is hereby DISMISSED; and
Petitioners Motion and Notice of Motion for Appointment of Counsel [Doc. No. 3]; Renewed Motion to Recuse [Doc. No. 14]; Motion and Notice for Leave to Request Production [Doc. No. 15]; Renewed Motion for Appointment of Counsel [Doc. No. 21]; and Motion to Adjourn and/or Continue Adjudication [Doc. No. 23] are hereby DENIED.