Grant v. Lewis

Filing 14

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 9/30/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 9/30/2011)

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*E-Filed 9/30/11*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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ORDER OF DISMISSAL

Petitioner,

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v.

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No. C 10-3705 RS (PR)

JESSE GRANT, III,

DAVE LEWIS, Warden,
Respondent.

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/

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INTRODUCTION

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This is a federal habeas petition filed pursuant to 28 U.S.C. § 2254 by a pro se state

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prisoner. For the reasons discussed herein, respondent’s motion to dismiss the petition as

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untimely (Docket No. 9) is GRANTED. The petition is DISMISSED.

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DISCUSSION
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Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which

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applies to every federal habeas petition filed on or after April 24, 1996, contains a statute of

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limitations codified at 28 U.S.C. § 2244(d). Federal habeas petitions must be filed within

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No. C 10-3705 RS (PR)
ORDER OF DISMISSAL

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one year of the latest of the date on which: (1) the judgment became final after the

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conclusion of direct review or the time passed for seeking direct review; (2) an impediment

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to filing an application created by unconstitutional state action was removed, if such action

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prevented petitioner from filing; (3) the constitutional right asserted was recognized by the

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Supreme Court, if the right was newly recognized by the Supreme Court and made

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retroactive to cases on collateral review; or (4) the factual predicate of the claim could have

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been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1). “[W]hen

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a petitioner fails to seek a writ of certiorari from the United States Supreme Court, the

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AEDPA’s one-year limitations period begins to run on the date the ninety-day period defined

United States District Court
For the Northern District of California

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by Supreme Court Rule 13 expires.” Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

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B.

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Timeliness of the Petition
The following facts are undisputed. Petitioner was sentenced on April 7, 2006 in the

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Alameda Superior Court. Petitioner did not appeal his conviction. Therefore, his conviction

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became final on June 6, 2006, that is, 60 days after the imposition of sentence. See Cal. Rule

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of Court 8.308(a). Petitioner, then, had until June 7, 2007 to file a timely federal habeas

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petition. The instant petition was filed on August 20, 2010, well after the June 2007

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deadline. On this record, absent tolling, the petition is barred by AEDPA’s statute of

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limitations.

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1.

Statutory Tolling

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According to the petition, petitioner filed his first state habeas petition on April 3,

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2009. (Pet., Ex. D.) Again, petitioner had until June 7, 2007 to file a timely federal habeas

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petition.

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For purposes of statutory tolling, the time during which a properly filed application for

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state post-conviction or other collateral review is pending is excluded from the one-year

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limitations period. See § 2244(d)(2). Petitioner is not entitled to statutory tolling. A state

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habeas petition filed after AEDPA’s statute of limitations ended, such as the May 1, 2009

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state habeas petition, cannot toll the limitation period. See Ferguson v. Palmateer, 321 F.3d

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No. C 10-3705 RS (PR)
ORDER OF DISMISSAL

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820, 823 (9th Cir. 2003). Section 2244(d)(2) cannot “revive” the limitation period once it

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has run (i.e., restart the clock to zero); it can only serve to pause a clock that has not yet fully

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run. “Once the limitations period is expired, collateral petitions can no longer serve to avoid

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the statute of limitations.” Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998).

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Because the limitations period expired prior to the filing of the first state habeas

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petition, petitioner is not entitled to statutory tolling. Accordingly, absent equitable tolling,

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the petition is untimely and must be dismissed.

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2.

Equitable Tolling

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Petitioner asserts that he is entitled to equitable tolling because he had to learn how to

United States District Court
For the Northern District of California

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file a habeas petition, relearn how to walk, and was suffering from medical problems,

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including stage four cancer. (Opp. to Mot. to Dismiss at 1–2.) The Supreme Court has

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determined that § 2244(d), AEDPA’s statute of limitations, is subject to equitable tolling in

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appropriate cases. Holland v. Florida, 130 S.Ct. 2549, 2554 (2010) (holding that equitable

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tolling may be applicable to extraordinary instance of attorney misconduct far greater than

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“garden variety” or “excusable neglect” where petitioner exhibited “reasonable diligence” in

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pursuing his rights and remanding case for detailed determination of circumstances). In

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Holland, the Supreme Court relied on the standard set forth in its earlier decision in Pace,

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that “made clear that a ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that

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he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood

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in his way’ and prevented timely filing.” Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S.

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408 (2005)); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (“When external forces,

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rather than a petitioner’s lack of diligence, account for the failure to file a timely claim,

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equitable tolling of the statute of limitations may be appropriate.”)

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Petitioner has not shown that he is entitled to equitable tolling. First, his lack of legal

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knowledge is not a sufficient basis to establish equitable tolling. See Raspberry v. Garcia,

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448 F.3d 1150, 1154 (9th Cir. 2006). His allegations of medical problems are insufficiently

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detailed to show that he was unable to file a timely habeas petition. Also, petitioner failed to

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pursue direct state review. Taking the entire record into account, petitioner has not shown
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No. C 10-3705 RS (PR)
ORDER OF DISMISSAL

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that he was pursuing his rights diligently and that some extraordinary circumstance prevented

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timely filing. Accordingly, respondent’s motion to dismiss will be granted.
CONCLUSION

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Respondent’s motion to dismiss the petition as untimely (Docket No. 9) is

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GRANTED. Accordingly, the petition is DISMISSED. Judgment will be entered in favor of

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respondent. A certificate of appealability will not issue. Petitioner has not shown “that

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

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

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

United States District Court
For the Northern District of California

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The Clerk shall enter judgment in favor of respondent, terminate Docket No. 9, and close the

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file.

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IT IS SO ORDERED.

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DATED: September 29, 2011
RICHARD SEEBORG
United States District Judge

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No. C 10-3705 RS (PR)
ORDER OF DISMISSAL