Opinion
No. C 00-1565 CRB (PR)
February 14, 2001
ORDER GRANTING MOTION TO DISMISS
Petitioner, a state prisoner currently incarcerated at California State Prison, Solano, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on June 30, 2000, the court noted a possible statute of limitation problem and ordered respondent to address whether the petition for a writ of habeas corpus was time-barred under 28 U.S.C. § 2244(d). Respondent filed a motion to dismiss the petition as untimely and petitioner filed an opposition.
BACKGROUND
Petitioner was convicted of two counts of second degree murder by a jury in the Superior Court of the State of California in and for the County of Alameda. On January 27, 1984, he was sentenced to 30 years to life in state prison. The California Court of Appeal affirmed the judgment of conviction on August 26, 1985 and the Supreme Court of California denied review on November 22, 1985.
Petitioner did not seek any further state relief until April 28, 1997, when he filed a petition for a writ of habeas corpus in Alameda County Superior Court. It was denied on August 27, 1997. He then sought a writ of habeas corpus from the Supreme Court of California. The state high court denied this final state petition for a writ of habeas corpus on March 25, 1998.
Petitioner next filed the instant federal petition for a writ of habeas corpus on May 3, 2000.
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 must be filed within one year of the latest of the date on which: (A) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (C) 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 (D) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). 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).
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 23, 1997 to file a federal habeas petition. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). The instant petition was not filed until May 3, 2000.
Petitioner did collaterally challenge his conviction in the state courts from April 28, 1997 to March 25, 1998. However, the one-year limitation period was not tolled under § 2244(d)(2) during this time because it had already expired on April 23, 1997, one year after it began to run against petitioner on April 24, 1996. Section 2244(d)(2) cannot "`revive' the limitation period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitation period is expired, collateral petitions can no longer serve to avoid a statute of limitation." Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998).
Even if the one-year limitation period had somehow tolled under § 2244(d)(2), the instant petition would still be untimely because it was filed more than two years after the Supreme Court of California denied petitioner's final state petition on March 25, 1998. Petitioner's federal petition would have been due by no later than March 25, 1999.
Petitioner claims that his federal petition is timely because AEDPA materials were not made available in the in the prison law Library until October 20, 1998 and inmate law clerks improperly advised him (and other prisoners) that the one-year limitation period did not begin to run against any prisoner until after he had exhausted his claims in the Supreme Court of California.
Section 2244(d)(1)(B) provides that the one-year limitation period will not run earlier than "the date on which [an] 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." According to petitioner, the unavailability of AEDPA materials in the prison law library before October 20, 1998 was an "impediment" to his filing an application and therefore he had at least until October 20, 1999 to file his federal petition. Our court of appeals recently noted, without deciding, that this argument may have merit. See Whalem/Hunt v. Early, 233 F.3d 1146, 1147-48 (9th Cir. 2000) (en banc). But even so, the petition is more than six months late.
Petitioner nonetheless argues that the court should excuse his not filing his federal petition until May 3, 2000 because inmate law clerks improperly advised him that the one-year limitation period did not begin to run against any prisoner until after he had exhausted his claims in the Supreme Court of California. He also argues that he is entitled to an extension of time because he was "only allotted approximately two hours of law library time per week."
Extensions of time should be granted only if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (citation and internal quotation marks omitted), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). No such extension is in order here.
Petitioner took more than one year and six months after the prison law library was updated with AEDPA materials to file his federal petition. His more-than-six-moth delay in filing his federal petition cannot be excused simply because he wanted more than two hours per week in the law library or because the advice he received from inmate law clerks was not entirely correct. Actually, the advice he received §§ that the one-year limitation period did not begin to run until after he had exhausted his claims in the Supreme Court of California §§ was not misleading as to him. Had he filed his federal petition within one year of the date on which the Supreme Court of California denied his final state petition (i.e., March 25, 1998), his federal petition probably would have been timely. Regardless, advice from inmate law clerks is no excuse. Prisoners who assist other prisoners with legal matters, whether writ writers or library law clerks, "are not subject to the ethical and fiduciary obligations of lawyers. If their miscreant, inept, or negligent conduct were deemed sufficient of itself to toll the AEDPA limitation period, the time-bar would be rendered virtually meaningless." Henderson v. Johnson, 1 F. Supp.2d 650, 655 (N.D. Tex. 1998).
CONCLUSION
For the foregoing reasons, respondent's motion to dismiss the petition as untimely is GRANTED.
The Clerk shall enter judgment and close the file.
SO ORDERED