Hamilton v. Evans

Filing 14

ORDER DISMISSING CASE. Signed by Judge William Alsup on 1/14/10. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 1/14/2010)

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1 2 3 4 5 6 7 8 9 10 LAWRENCE HAMILTON, Petitioner, vs. Warden M .J. EVANS, Respondents. / INTRODUCTION Petitioner, a California prisoner proceeding pro se, filed this habeas case under 28 U.S.C. 2254. Respondent was ordered to show cause why the petition should not be granted. Respondent has filed a motion to dismiss on statute of limitations grounds, and petitioner has filed an opposition. The motion to dismiss will be granted. STATEMENT On November 30, 2006, petitioner plead no contest to voluntary manslaughter with sentence enhancements for the use of a firearm and for prior convictions (Resp't. Ex. A). On January 31, 2007, the trial court sentenced him to a term of twenty years in state prison (ibid.). Petitioner did not file a direct appeal of his conviction or his sentence. On December 7, 2007, petitioner filed a petition for a writ of habeas corpus in the Alameda County Superior Court, and it was denied on the same day (Resp't. Ex. B). He had signed the petition on November 28, 2007 (ibid.). Petitioner then filed a petition for a writ of No. C 09-3072 WHA (PR) ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (Docket No. 8) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 habeas corpus in the California Court of Appeal on January 16, 2008 (Resp't. Ex. C). The petition was denied on January 25, 2008 (ibid.). Finally, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court on February 4, 2008 (Resp't. Ex. D). The petition was denied on July 30, 2008 (ibid.). Petitioner signed the instant petition on June 30, 2009, and it was filed on July 8, 2009. ANALYSIS Respondent contends that the petition is barred by the statute of limitations. 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 a writ of habeas corpus filed by state prisoners. Under AEDPA, prisoners challenging noncapital state convictions or sentences must file petitions for relief 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. 28 U.S.C. 2244(d)(1)(A).1 Here, petitioner did not file a direct appeal. The "time for seeking" direct review expired when the deadline for filing an appeal in the California Court of Appeal passed. The deadline was March 27, 2007, or 90 days after the date petitioner was sentenced and judgment was entered in the trial court. See Cal. R. Ct. 8.308(a). Under the "mailbox rule," the instant petition is deemed filed on June 30, 2009, the date it was signed and presumably given to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988). As the instant petition was not filed until more than two years after the one-year limitations period began, the instant petition is untimely absent tolling. The one-year statute of limitations is tolled under 2244(d)(2) for the "`time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.'" Dictado v. Ducharme, 244 F.3d 724, 726 (9th Cir. 2001) (quoting 28 U.S.C. 2244(d)(2)). Under the mailbox rule, petitioner's first state habeas petition is deemed filed on November 28, 2007, the date it was signed. The limitations period had commenced on March 27, 2007, 246 days earlier. Thus, 246 days of the United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In rare instances neither argued in nor applicable to the present case, the limitation period may run from a different dated. See 28 U.S.C. 2244(d)(1)(B)-(D). 1 2 1 2 3 4 5 6 7 8 9 10 limitations period had expired when petitioner filed his first state habeas petition, and tolling under section 2244(d)(2) began, on November 28, 2007. Tolling under section 2244(d)(2) continued until petitioner's final state habeas petition was denied by the California Supreme Court on July 30, 2008. See Carey v. Saffold, 536 U.S. 214, 221-23 (2002) (statutory tolling includes reasonable interstitial periods between state habeas petitions filed in successive state courts as well as periods petitions are actually pending in the state courts). The limitations period began running again the following day, on July 31, 2008, and, as the one-year limitations period had already run for 246 days prior to the filing of the first state habeas petition, it expired 119 days later, on November 27, 2008. The instant petition was not filed until June 30, 2009, however, approximately 216 days after the limitations period expired. Consequently, the instant petition is untimely absent equitable tolling. The Supreme Court has "never squarely addressed the question whether equitable tolling is applicable to AEDPA's statute of limitations." Pace v. DiGuglielmo, 544 U.S. 408, 418 n.8 (2005). However, the Ninth Circuit has held that equitable tolling is available if petitioner establishes: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Raspberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (quoting Pace, 544 U.S. at 419). The prisoner also must show that "the `extraordinary circumstances' were the cause of his untimeliness." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (citations omitted). Here, petitioner does not argue that he is entitled to equitable tolling, let alone make the required showing of diligence and extraordinary circumstances. His allegations of not having legal assistance and lacking legal training or knowledge, while regrettable, do not constitute "extraordinary" circumstances that entitle him to equitable tolling. Raspberry, 448 F.3d at 1154 (holding that pro se petitioner's lack of legal knowledge is not, extraordinary circumstance warranting equitable tolling). Petitioner's other arguments in his opposition address the merits of his petition, and not its timeliness or the availability of equitable tolling of the limitations period. For the reasons discussed, the petition is untimely and the motion to dismiss will be granted. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 3 4 5 6 7 8 9 10 CONCLUSION Respondent's motion to dismiss (document number 8 on the docket) is GRANTED. The petition is DISMISSED. The clerk shall close the file and terminate any pending motions. IT IS SO ORDERED. Dated: January 14 , 2010. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\WHA\HC.09\HAMILTON3072.DSM-MTDSOL.wpd 4

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