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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*E-Filed 2/22/13*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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No. C 10-0762 RS (PR)

GEORGE MOTA VENTURA,
Petitioner,
v.

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ORDER OF DISMISSAL

JAMES A. YATES, Warden,
Respondent.

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INTRODUCTION

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Petitioner seeks federal habeas relief from his state convictions. Respondent moves to

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dismiss as untimely the petition for such relief. Petitioner has not filed an opposition. For

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the reasons discussed herein, respondent’s motion (Docket No. 17) is GRANTED. The

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petition is DISMISSED.
DISCUSSION

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A.

Standard of Review

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Federal habeas petitions must be filed within one year of the latest of the date on

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which: (1) the judgment became final after the conclusion of direct review or the time passed

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for seeking direct review; (2) an impediment to filing an application created by

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No. C 10-0762 RS (PR)
ORDER OF DISMISSAL

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unconstitutional state action was removed, if such action prevented petitioner from filing; (3)

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the constitutional right asserted was recognized by the Supreme Court, if the right was newly

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recognized by the Supreme Court and made retroactive to cases on collateral review; or (4)

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the factual predicate of the claim could have been discovered through the exercise of due

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diligence. See 28 U.S.C. § 2244(d)(1). “[W]hen a petitioner fails to seek a writ of certiorari

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from the United States Supreme Court, the AEDPA’s one-year limitations period begins to

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run on the date the ninety-day period defined by Supreme Court Rule 13 expires.” Bowen v.

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Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

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B.

United States District Court
For the Northern District of California

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Timeliness of the Petition
Petitioner’s conviction became final on May 24, 2005, when the time expired for

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appealing to the United States Supreme Court the state supreme court’s denial of his petition

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for direct review. Petitioner, then, had until May 25, 2006 to file a timely federal habeas

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petition. The instant petition was filed on February 23, 2010, well after the May 25, 2006

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deadline. On this record, absent statutory or equitable tolling, the petition is barred by

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AEDPA’s statute of limitations and must be dismissed.

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1.

Statutory Tolling

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Petitioner filed his first state habeas petition on August 5, 2008, which was after the

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May 25, 2006 federal habeas filing deadline. For purposes of statutory tolling, the time

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during which a properly filed application for state post-conviction or other collateral review

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is pending is excluded from the one-year limitations period. See § 2244(d)(2).

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Petitioner is not entitled to statutory tolling. A state habeas petition filed after

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AEDPA’s statute of limitations ended, here the August 5, 2008 state petition, cannot toll the

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limitation period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Section

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2244(d)(2) cannot “revive” the limitation period once it has run (i.e., restart the clock to

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zero); it can only serve to pause a clock that has not yet fully run. “Once the limitations

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period is expired, collateral petitions can no longer serve to avoid a statute of limitations.”

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Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998). Because petitioner filed his

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No. C 10-0762 RS (PR)
ORDER OF DISMISSAL

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first state habeas petition after the filing date for a federal habeas petition, he is not entitled to

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statutory tolling. Absent equitable tolling, the petition must be dismissed.

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2.

Equitable Tolling

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As petitioner has not filed an opposition, he has shown no basis for equitable tolling.

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Therefore, he has not shown “‘(1) that he has been pursuing his rights diligently, and (2) that

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some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v.

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Florida, 130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

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(2005)); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).
CONCLUSION

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For the reasons stated above, respondent’s motion to dismiss the petition as untimely

United States District Court
For the Northern District of California

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(Docket No. 17) is GRANTED. Accordingly, the action is DISMISSED.
A certificate of appealability will not issue. Petitioner has not shown “that jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right and that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The

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Clerk shall enter judgment in favor of respondent, terminate Docket No. 17, and close the

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file.

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IT IS SO ORDERED.
DATED: February 22, 2013
RICHARD SEEBORG
United States District Judge

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No. C 10-0762 RS (PR)
ORDER OF DISMISSAL