Opinion
Civil No. 99-1656-KI
October 30, 2000
Harold J. Stookey, Oregon State Penitentiary, Salem, Oregon, Pro Se Petitioner
Hardy Myers, Attorney General, Carolyn Alexander, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent
OPINION AND ORDER
Petitioner Harold Jefferson Stookey seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a State of Oregon conviction for Ex-Convict in Possession of a Firearm. Respondent asks that the petition be dismissed with prejudice on the basis that it was not timely filed within the limitations period prescribed by 28 U.S.C. § 2244 (dXl) of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). For the reasons set forth below, I dismiss the petition.
FACTS
Stookey is in the custody of the Oregon Department of Corrections pursuant to a Judgment dated October 21, 1993, after he was convicted on the charge of Ex-Convict in Possession of a Firearm (the "Firearm Offense"). The date of the original Judgment was May 15, 1990. At that time, the imposition of sentence was suspended and Stookey was given three years probation. On February 13, 1991, Stookey was arrested on a Murder charge. On March 5, 1992, a motion to revoke probation was filed. Upon his conviction for Murder, probation was revoked on October 21, 1993 and he was sentenced to serve five years on the Firearm Offense conviction to run consecutively to the sentence imposed for Murder.
Stookey was sentenced to 210 months for Murder in a Judgment dated November 1, 1991.
Stookey directly appealed his conviction for the Firearm Offense. The Oregon Court of Appeals affirmed without opinion in State v. Stookey, 129 Or. App. 599, 879 P.2d 246 (1994). The Oregon Supreme Court denied review. 320 Or. 272, 882 P.2d 1114 (1994). The Appellate Judgment issued on November 25, 1994. Stookey then filed a petition for post-conviction relief The post-conviction court denied relief The Oregon Court of Appeals again affirmed without opinion in Stookey v. Armenakis, 140 Or. App. 645, 917 P.2d 78 (1996), and issued its Appellate Judgment on July 19, 1996. Stookey did not seek review from the Oregon Supreme Court and, therefore, the Appellate Judgment became final on July 19, 1996. Stookey filed this federal habeas petition on November 23, 1999.
Stookey attempted to litigate a second petition for post-conviction relief He filed that petition on February 23, 1999. The state filed a motion for summary judgment on the basis that the claims could have been raised in the first proceeding and, thus, were barred under the state post-conviction statutes. Furthermore, the state asserted that the petition was time-barred under those statutes. The post-conviction court granted the motion for summary judgment on those bases in an order dated August 25, 1999.
In his federal habeas petition, Stookey seeks relief on the basis that the sentencing court did not have the jurisdiction or authority to impose a consecutive sentence for the Firearms Offense. He makes a similar claim regarding the parole board.
DISCUSSION
The 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 the time for seeking such review. See 28 U.S.C. § 2244 (d)(1)(A). The one-year statute of limitation 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 of such instances.
The AEDPA's one-year statute of limitation did not start running against any state prisoner before the statute went into effect on April 24, 1996. See 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), cert. denied, 118 S.Ct. 899,, 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, 119 S.Ct. 1377 (1999). A prisoner with a state conviction finalized before April 24, 1996, such as petitioner, therefore had until April 23, 1997 to file a federal habeas petition. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999).
In this case, the date that the statute of limitations began to run was July 19, 1996 — the date that the Oregon Court of Appeals issued its Appellate Judgment on Stookey's first petition for post-conviction relief A year from such date was July 18, 1997. To not be time-barred, Stookey's federal habeas petition had to be filed before that date. The pending petition, however, was not filed until November 23, 1999. As such, Stookey did not file the petition within the one-year period provided by the AEDPA and it is time-barred.
I acknowledge that Stookey filed a second petition for post-conviction relief That petition, however, did not toll the statute of limitations because it was filed on February 23, 1999 — long after the statute expired. The same holds true for the Petition for Alternative Writ of Mandamus that Stookey filed with the Oregon Supreme Court on or about September 20, 1999.
Respondent also makes a persuasive argument that Stookey's second petition was not "a properly filed application for State post-conviction or other collateral review" as is necessary for the petition to toll the statute of limitations. 28 U.S.C. § 2244 (d)(2); Dictado v. Ducharme, 189 F.3 d 889, 892 (9th Cir. 1999) (A "properly filed" petition under § 2244(d)(2) means a petition "submitted in compliance with the procedural laws of the state in which the [petition] was filed.").
Because I find that Stookey's petition is untimely, I do not reach respondent's alternative argument that the petition should be denied because the grounds do not state a claim upon which relief may be granted.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is dismissed with prejudice. IT IS SO ORDERED.