Opinion
No. C 02-0568 WHA (PR)
May 31, 2002
JUDGMENT
The court having entered a ruling today granting respondent's motion to dismiss, judgment is hereby entered in favor of respondent. Petitioner shall obtain no relief by way of his petition.
ORDER GRANTING MOTION TO DISMISS
This is a habeas case filed pro se by a state prisoner. In the order to show cause the court noted that the petition might be barred by the statute of limitations. Respondent has moved to dismiss on that ground, and petitioner has opposed the motion.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996, imposed for the first time a statute of limitations 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. See 28 U.S.C. § 2244 (d)(1).
Petitioner does not dispute that his conviction became final well before the AEDPA took effect. He therefore had until April 24, 1997, to file his habeas petition, unless the running of the statute was tolled or some date for its commencement other than completion of direct review is applicable. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 118 S.Ct. 988, and cert. denied, 118 S.Ct. 1389 (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, 523 U.S. 119 S.Ct. 1377 (1999).
He was convicted in 1992 and his conviction was affirmed by the Court of Appeal of California in the same year. He did not petition the California Supreme Court for review.
The time during which a properly filed application for state collateral review is pending is excluded from the one-year time limit, that is, the running of the limitations period is tolled while such state proceedings are pending. 28 U.S.C. § 2244 (d)(2). Respondent asserts that petitioner's first state habeas petition was not filed until October 19, 1998, after the statute of limitations had expired, and petitioner does not dispute this. Petitioner's argument, however, is that because his state habeas proceedings were not complete until at least August 8, 2001, when his last petition was denied by the California Supreme Court, the statute of limitations has not run even now. That is, he is assuming (without saying so) that the limitations period can run from the date of completion of state collateral review, rather than from completion of direct review or one of the other starting dates for the limitations period provided in 28 U.S.C. § 2244 (d)(1). There is no statutory authority for this proposition, and it is contrary to the language of the limitations statute. Section 2244(d)(2) is a tolling provision — that is, it "stops the clock" on the running of the limitations period for the time a properly filed state collateral review action is pending. It does not restart the clock. That is the nature of tolling provisions.
Petitioner also contends that the cases cited by the respondent do not stand for the proposition that filing state collateral review actions after expiration of the limitations period does not restart the limitations clock. He is incorrect. In Webster v. Moore, 199 F.3d 1256 (11th Cir. 2000). the court stated the issue at the outset of the opinion as petitioner has it — whether a state petition which was dismissed as untimely was "properly filed" within the meaning of § 2254(d)(2) — and petitioner is correct that this is not the issue here. However, in the body of the opinion the court also resolved a second issue: Whether, if the first petition in that case was not properly filed, the second petition somehow "revived" the statute of limitations. That contention, which is what petitioner is arguing here, was rejected. Id. at 1259. Webster is thus persuasive authority for rejection of petitioner's argument.
He also asserts that Rashid v. Khulmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998), being a district court decision from another circuit, is of no precedental value. Although it is true that Rashid is not binding, it does have persuasive value as showing the result reached by another court when faced with the same issue.
In Jackson v. Dormire, 180 F.3d 919 (8th Cir. 1999), the court held that those of petitioner's claims which were first raised in state court filed after expiration of the federal limitations period were time-barred in the federal action. Id. at 920. This also is authority, though perhaps rather weak authority, for the rejection of petitioner's argument.
Petitioner also asserts that even if his petition was filed after expiration of the statute of limitations, the court should decide his claims on the merits because it involves constitutional rights. Virtually all habeas cases brought by state prisoners involve allegations that the litigant's constitutional rights were violated. Congress must have been aware of this when it passed the AEDPA, and the statute of limitations contained in the AEDPA is itself constitutional. See Green v. White, 223 F.3d 1001, 1004 (9th Cir. 2000). The court will not read the statute of limitations out of existence. This argument is rejected.
Petitioner also asks that if the court determines that he cannot bring his claims under 28 U.S.C. § 2254, it treat the petition as arising under 28 U.S.C. § 1651 (the All Writs Act) or 42 U.S.C. § 1983. His claims would be barred by Heck v. Humphrey, 512 U.S. 477, 486-487 (1994), if brought in a section 1983 civil rights complaint. And the All Writs Act cannot be used as a substitute for habeas corpus, even if the AEDPA now precludes a habeas petition. See Matus-Leva v. United States, 287 F.3d 758, 760-61 (9th Cir. 2002) (federal prisoner cannot challenge conviction via petition for writ of corum nobis under All Writs Act if claims were of the sort which could be raised in federal habeas petition under 28 U.S.C. § 2255, even if AEDPA barred § 2255 motion); United States v. Valdez-Pacheco, 237 F.3d 1077, 1079-1080 (9th Cir. 2000) (same as to petition for writ of audita querela under All Writs Act). In any event, the All Writs Act empowers federal courts only to act to preserve their jurisdiction, which jurisdiction must have an independent source in the law, Jackson v. Vasquez, 1 F.3d 885, 888-89 (9th Cir. 1993); petitioner has not pointed to any such independent source in this case. For these reasons, petitioner's request that the petition be treated as a section 1983 complaint or a petition under the All Writs Act is denied.
CONCLUSION
Respondent's motion to dismiss (doc 3) is GRANTED. The petition is DISMISSED with prejudice. The clerk shall close the file.IT IS SO ORDERED.