Opinion
Case No. 2:19-cv-01246-SU
04-13-2020
ADAM STELTZ, Petitioner, v. BRAD CAIN, Respondent.
Brad Steltz 11973368 Snake River Correctional Institution 777 Stanton Blvd. Ontario, Oregon 97914-8335 Petitioner, Pro Se Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent
FINDINGS AND RECOMMENDATION Brad Steltz
11973368
Snake River Correctional Institution
777 Stanton Blvd.
Ontario, Oregon 97914-8335
Petitioner, Pro Se Ellen F. Rosenblum, Attorney General
Samuel A. Kubernick, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent SULLIVAN, Magistrate Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the revocation of his probation by the Multnomah County Circuit Court. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) should be dismissed as untimely.
BACKGROUND
In December 2004 and January 2005, Petitioner entered a guilty plea to one count of Sexual Abuse in the First Degree and a no-context plea to one count of Attempted Rape in the First Degree in two Multnomah County Cases (Nos. 031236833 and 041136208). Respondent's Exhibit 101. As a result, the Multnomah County Circuit Court sentenced Petitioner to 75 months in prison for the Sexual Abuse conviction in Case No. 031236833 and a 10-year term of probation with respect to the Attempted Rape conviction in Case No. 041136208. Id. Petitioner did not directly appeal these convictions, and they became final in early 2005.
Due to subsequent convictions in Marion County during the service of Petitioner's 75-month sentence for Sexual Abuse, the Multnomah County Circuit Court revoked Petitioner's probation in Case No. 041136208. Petitioner challenged the revocation by way of a direct appeal, but was unsuccessful. State v. Steltz, 259 Or. App. 292, 313 P.3d 387 (2013), rev. denied, 354 Or. 814, 325 P.3d 33 (2014). The direct Appellate Judgment issued on April 1, 2014, and Petitioner did not file for post-conviction relief. Respondent's Exhibit 109.
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on August 8, 2019. Construing the Petition liberally, Petitioner asserts that the revocation of his probation in Case No. 041136208 was unlawful. Respondent asks the Court to dismiss the Petition because Petitioner failed to file it within the applicable statute of limitations. Although Petitioner's supporting memorandum was due March 23, 2020, he has not filed any such brief nor has he communicated with the Court since filing his individual consent to Magistrate jurisdiction on September 26, 2019.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted on April 24, 1996. AEDPA provides that a one-year statute of limitations applies to federal habeas corpus actions filed by state prisoners. The one-year period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) 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; or28 U.S.C. 2244(d)(1).
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Petitioner's direct appeal became final when the Appellate Judgment issued on April 1, 2014. The AEDPA's statute of limitations did not begin to run until June 30 when Petitioner's time for filing a certiorari petition with the Supreme Court expired. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The statute of limitations ran unabated from July 1, 2014 until Petitioner filed this case on August 8, 2019 placing him well outside the one-year window in which to file the current action.
To the extent it is Petitioner's intention to challenge the legality of his Multnomah County convictions as opposed to the probation revocation, this action would still be clearly untimely where those convictions became final in early 2005. --------
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#2) should be denied and a judgment should be entered dismissing this case with prejudice. The Court should 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). /// /// ///
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 13th day of April, 2020.
/s/Patricia Sullivan
Patricia Sullivan
United States Magistrate Judge