Ventura v. Yates

Filing 18

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 2/22/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 2/22/2013)

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1 2 3 *E-Filed 2/22/13* 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 9 SAN FRANCISCO DIVISION 11 12 13 No. C 10-0762 RS (PR) GEORGE MOTA VENTURA, Petitioner, v. 14 15 ORDER OF DISMISSAL JAMES A. YATES, Warden, Respondent. 16 / 17 INTRODUCTION 18 Petitioner seeks federal habeas relief from his state convictions. Respondent moves to 19 20 dismiss as untimely the petition for such relief. Petitioner has not filed an opposition. For 21 the reasons discussed herein, respondent’s motion (Docket No. 17) is GRANTED. The 22 petition is DISMISSED. DISCUSSION 23 24 A. Standard of Review 25 Federal habeas petitions must be filed within one year of the latest of the date on 26 which: (1) the judgment became final after the conclusion of direct review or the time passed 27 for seeking direct review; (2) an impediment to filing an application created by 28 No. C 10-0762 RS (PR) ORDER OF DISMISSAL 1 unconstitutional state action was removed, if such action prevented petitioner from filing; (3) 2 the constitutional right asserted was recognized by the Supreme Court, if the right was newly 3 recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) 4 the factual predicate of the claim could have been discovered through the exercise of due 5 diligence. See 28 U.S.C. § 2244(d)(1). “[W]hen a petitioner fails to seek a writ of certiorari 6 from the United States Supreme Court, the AEDPA’s one-year limitations period begins to 7 run on the date the ninety-day period defined by Supreme Court Rule 13 expires.” Bowen v. 8 Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). 9 B. United States District Court For the Northern District of California 10 Timeliness of the Petition Petitioner’s conviction became final on May 24, 2005, when the time expired for 11 appealing to the United States Supreme Court the state supreme court’s denial of his petition 12 for direct review. Petitioner, then, had until May 25, 2006 to file a timely federal habeas 13 petition. The instant petition was filed on February 23, 2010, well after the May 25, 2006 14 deadline. On this record, absent statutory or equitable tolling, the petition is barred by 15 AEDPA’s statute of limitations and must be dismissed. 16 1. Statutory Tolling 17 Petitioner filed his first state habeas petition on August 5, 2008, which was after the 18 May 25, 2006 federal habeas filing deadline. For purposes of statutory tolling, the time 19 during which a properly filed application for state post-conviction or other collateral review 20 is pending is excluded from the one-year limitations period. See § 2244(d)(2). 21 Petitioner is not entitled to statutory tolling. A state habeas petition filed after 22 AEDPA’s statute of limitations ended, here the August 5, 2008 state petition, cannot toll the 23 limitation period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Section 24 2244(d)(2) cannot “revive” the limitation period once it has run (i.e., restart the clock to 25 zero); it can only serve to pause a clock that has not yet fully run. “Once the limitations 26 period is expired, collateral petitions can no longer serve to avoid a statute of limitations.” 27 Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998). Because petitioner filed his 28 2 No. C 10-0762 RS (PR) ORDER OF DISMISSAL 1 first state habeas petition after the filing date for a federal habeas petition, he is not entitled to 2 statutory tolling. Absent equitable tolling, the petition must be dismissed. 3 2. Equitable Tolling 4 As petitioner has not filed an opposition, he has shown no basis for equitable tolling. 5 Therefore, he has not shown “‘(1) that he has been pursuing his rights diligently, and (2) that 6 some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. 7 Florida, 130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 8 (2005)); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). CONCLUSION 9 For the reasons stated above, respondent’s motion to dismiss the petition as untimely United States District Court For the Northern District of California 10 11 (Docket No. 17) is GRANTED. Accordingly, the action is DISMISSED. A certificate of appealability will not issue. Petitioner has not shown “that jurists of 12 13 reason would find it debatable whether the petition states a valid claim of the denial of a 14 constitutional right and that jurists of reason would find it debatable whether the district court 15 was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The 16 Clerk shall enter judgment in favor of respondent, terminate Docket No. 17, and close the 17 file. 18 19 IT IS SO ORDERED. DATED: February 22, 2013 RICHARD SEEBORG United States District Judge 20 21 22 23 24 25 26 27 28 3 No. C 10-0762 RS (PR) ORDER OF DISMISSAL

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