Opinion
No. C 01-3152 S1 (pr)
July 2, 2002
ORDER OF DISMISSAL
INTRODUCTION
Jare A. Stephens, currently in custody at the Atascadero State Hospital, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition as untimely under 28 U.S.C. § 2244 (d). Stephens has not opposed the motion. For the reasons discussed below, the court will grant respondent's motion and dismiss the petition. The court also will deny Stephens' request for appointment of counsel.
BACKGROUND
Stephens was convicted in 1989 upon a plea of no contest to committing lewd and lascivious conduct upon a child under the age of 14. See Cal. Penal Code § 288(a). He was sentenced to a term of seventeen years in state prison. Stephens' appeal from that conviction terminated in 1990. (Stephens also had been convicted in 1984 of three counts of committing lewd and lascivious conduct upon a child underihe age of 14, although the 1984 conviction is not the subject of his current petition.)
The docket sheet for People v. Stephens, No. H0073 79, from the Califonia Court of Appeal-Sixth Appellate District, shows that the appeal was dismissed on December 27, 1990 pursuant to appellant's request.
In 1997 and 1998, when Stephens' parole date was approaching, state authorities sought and obtained an order for Stephens' civil commitment under California's Sexually Violent Predator Act ("SVPA"). See Cal. Welf. Inst. Code § 6600. Stephens appealed the judgment of civil commitment under the SVPA; the judgment was affirmed by the California Court of Appeal and the petition for review was denied by the California Supreme Court in 1999.
Stephens filed his federal petition for writ of habeas corpus on August 16, 2001.
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 limitations on petitions for writ of habeas corpus filed by state prisoners. A petition filed by a prisoner challenging a non-capital state conviction or sentence 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 the time for seeking such review. See 28 U.S.C. § 2244 (d)(1)(A). The AEDPA's one-year time limit did not begin to run earlier than April 24, 1996, for prisoners, such as Stephens, whose state convictions were finalized before April24, 1996. A prisoner, such as Stephens, who had a state conviction finalized before April 24, 1996, therefore had until April 24, 1997, to file a federal habeas petition. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Stephens' federal petition was not filed until August 2001, more than four years after the deadline. Unless Stephens is entitled to some tolling, his petition is time-barred.
The next step is to determine whether the one-year period should be tolled under the text of the statute which provides for tolling for the time period during which a properly filed application for post-conviction or other collateral review is pending in state court. See 28 U.S.C. § 2244 (d)(2). Stephens is not entitled to any statutory tolling because his appeal had concluded before the limitations period began on April 24, 1996, and he did not seek relief from the conviction by way of a state habeas petition. Stephens' assertion in his petition that his appeal was denied in 1999, appears to be a reference to his appeal from his 1998 commitment under California's SVPA rather than his appeal from his criminal conviction in 1989 which is the subject of the present petition. The appeal of the civil commitment judgment did not toll the limitations period for the filing ofa habeas petition challenging the conviction.
Petitioner makes it clear in his statement of grounds for relief that his present habeas challenge is his underlying 1990 conviction. See petition at pp. 5-6. ("1 was coerced into making the wrong plea by [trial judged"; "I was not allowed to produce facts of my innocence"; "1 was denied my rights to have a full trial.") When asked to list which of these claims had not previously been presented to any other court, petitioner responded: "None of these cLaims were represented to the appeal courts. My appeal attorney only brought the issue of my confinement at Atascadero State Hospital under the S.V.P. (Sexually Violent Predertor Law after doing a 17 year sentence that I was sentenced to by Judge John Schatz."
The final step is to determine whether equitable tolling applies. Equitable tolling of the limitation period is available upon a showing of extraordinary circumstances beyond a petitioner's control which prevented him from timely filing the petition. See, e.g., alderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (equitable tolling will not be available in most cases because extensions of time should only be granted if extraordinary circumstances beyond prisoner's control make it impossible for him to file petition on time), cert. denied, 523 U.S. 1, an cert. denied, 523 U.S. 1061 (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, 526 U.S. 1060 (1999). Stephens has shown no reason to equitably toll the limitations period.
Stephens' federal petition was filed on August 16, 2001, more than four years after the April 24, 1997 deadline to do so. The petition must be dismissed because it was not timely filed under 28 U.S.C. § 2244(d)(1).
The August 16, 2001 filing date is also well beyond a year after the finality of his civil commitment order (trial court order, June, 1998; affirmed on appeal by order filed July 9, 1999; petition for review denied by California Supreme Court, September 29, 1999; no petition for certiorari filed with United States Supreme Court).
Finally, the court notes that Stephens requ'ested appointment of counsel in his amendment to petition filed on October 23, 2001. A district court may appoint counsel to represent a habeas petitioner whenever "the court determines that the interests ofjustice so require and such person is financially unable to obtain representation." 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district court. See hane v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987). Appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations. See id. The interests of justice do not require appointment of counsel in this action.
CONCLUSION
Respondent's motion to dismiss is GRANTED. The petition is dismissed because it was not timely filed. The clerk shall close the file.