Opinion
3:22-cv-01318-JE
03-09-2023
ERLENE KAY REGER, Petitioner, v. OREGON, Respondent.
FINDINGS AND RECOMMENDATION
John Jelderks United States Magistrate Judge
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on September 2, 2022 challenging her October 15, 2012 Malheur County convictions. Her filing prompted the Court to issue a Scheduling Order calling for an Answer and Response from Respondent by November 21, 2022, and a supporting memorandum from Petitioner on or before January 20, 2023. Respondent timely filed his Response and argues that Petitioner breached the one-year statute of limitations applicable to this habeas corpus case when she allowed 578 days to elapse before she initiated this proceeding. See 28 U.S.C. 2244(d)(1)(A) (one-year statute of limitations). Petitioner has not filed a memorandum in support of her Amended Petition or otherwise provided any argument to rebut the State's contention that she failed to timely file this action.
A review of the record reveals that Petitioner allowed 259 untolled days to accrue between the time her direct appeal concluded on September 28, 2016, and the date she filed her Petition seeking post-conviction relief (“PCR”) on June 14, 2017.2 See Respondent's Exhibit 120; Respondent's Exhibit 122. Another 309 untolled days accrued between the conclusion of Petitioner's PCR action on October 25, 2021 and the date she mailed her original Petition for Writ of Habeas Corpus to the Court, August 30, 2022. See Respondent's Exhibit 152; Petition (#2), p. 15. She therefore filed her original Petition for Writ of Habeas Corpus after 568 untolled days elapsed, firmly placing her outside of the statutory one-year deadline. The Court should therefore dismiss this case as untimely.
Respondent calculates this timeframe to be 269 days, but this appears to be a typographical error where the State's total number of untolled days equals my calculation.
RECOMMENDATION
For the reasons identified above, the Amended Petition for Writ of Habeas Corpus (#12) should be dismissed and a judgment should be entered dismissing this case with prejudice. The Court should also decline to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).