Opinion
No. C 01-2644 CRB (PR), (Doc # 5)
April 19, 2002
ORDER GRANTING MOTION TO DISMISS
Petitioner, a state prisoner incarcerated at the California Men's Colony in San Luis Obispo, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on October 4, 2001, the court found that petitioner's claims appeared colorable under § 2254 when liberally construed, and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent instead moved to dismissed the petition as untimely under 28 U.S.C. § 2244 (d). The court stayed its order to show cause and gave petitioner an opportunity to file an opposition. After a modest extension of time, petitioner filed an opposition.
BACKGROUND
On June 15, 1992, petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Santa Cruz of nine sex offenses perpetrated between 1977 and 1989 against two sisters under 14 years of age. He was sentenced to 29 years in state prison. On December 15, 1993, the California Court of Appeal struck one of petitioner's convictions and modified his sentence accordingly; it otherwise affirmed the judgment of conviction. On March 31, 1994, the Supreme Court of California denied review.
On October 26, 1998, petitioner filed a petition for a writ of habeas corpus in state superior court. It was denied on November 30, 1998.
On August 24, 2000, petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in this court. It was dismissed without prejudice on October 10, 2000 for failure to exhausts state judicial remedies.
On January 12, 2001, petitioner filed a petition for a writ of habeas corpus in the Supreme Court of California. It was denied on April 25, 2001.
On June 11, 2001, petitioner filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254.
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 limitation on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences now 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 time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A). The one-year limitation period is tolled for the "time during which a properly filed application for State post-conviction or other collateral review . . . is pending." Id. § 2244(d)(2).
In rare instances, the limitation period may run from a date later than the date on which the judgment became final, see 28 U.S.C. § 2244(d)(1)(B)-(D); however, this case does not present any such instance.
AEDPA's one-year limitation period did not start running against any state prisoner before the statute went into effect on April 24, 1996.Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997) (allowing § 2244(d)'s limitation period to commence before AEDPA's enactment would have an impermissible retroactive effect), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). A prisoner with a state conviction finalized before April 24, 1996, such as petitioner, therefore had at least until April 24, 1997 to file a federal habeas petition. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). The instant petition was not filed until June 11, 2001.
Petitioner argues that he is entitled to tolling under § 2244(d)(2) because his final petition for state habeas relief was not rejected by the Supreme Court of California until April 25, 2001. In support, he cities Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), and subsequent cases, for the proposition that a California prisoner is entitled to tolling under § 2244(d)(2) from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge. See, e.g., Welch v. Newland, 267 F.3d 1013, 1015-17 (9th Cir. 2001) (petitioner entitled to tolling under Nino despite waiting four and one-half years after the superior court denied his petition to file his next petition in the state supreme court); Saffold v. Newland, 250 F.3d 1262, 1267-68 (9th Cir. 2001) (petitioner entitled to tolling under Nino despite waiting four and one-half months after the state court of appeal denied his petition to file his next petition in the state supreme court), cert. granted, 122 S.Ct. 393 (2001).
Nino and its progeny are inapposite here because by the time petitioner filed his first state habeas petition on October 26, 1998, the one-year limitation period had already expired on April 24, 1997, one year after it began to run against petitioner on April 24, 1996. A state habeas petition filed after AEDPA's statute of limitation ended cannot toll the limitation period under § 2244(d)(2). See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Section 2244(d)(2) cannot "revive" the limitation period once it has run (i.e., restart the clock to zero); it can only serve to pause a clock that has not yet fully run. "Once the limitations period is expired, collateral petitions can no longer serve to avoid the statute of limitations." Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998); accord Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). The instant petition is untimely.
Although petitioner alludes to equitable tolling, he sets forth no allegations whatsoever showing (or even suggesting) that "extraordinary circumstances beyond [his] control [made] it impossible [for him] to file a petition on time." Beeler, 128 F.3d at 1288 (citations and internal quotation marks omitted).
CONCLUSION
For the foregoing reasons, respondent's motion to dismiss the petition as untimely (doc # 5) is GRANTED.The Clerk shall enter judgment in favor of respondent and close the file.