Luna v. People of the State of Calfornia

Filing 7

ORDER DISMISSING CASE. Signed by Judge Richard Seeborg on 9/29/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 9/30/2011)

1
2
3

*E-Filed 9/30/11*

4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

10

SAN FRANCISCO DIVISION

11
12
13

ORDER OF DISMISSAL

Petitioner,

14

v.

15
16

No. C 10-5649 RS (PR)

JOSE GINOVENA LUNA,

PEOPLE OF THE STATE OF
CALIFORNIA,

17

Respondent.
/

18
19

INTRODUCTION

20

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

21

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

22

untimely (Docket No. 5) is GRANTED. The petition is DISMISSED.

23
24
25

DISCUSSION
A.

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

26

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

27

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

28

No. C 10-5649 RS (PR)
ORDER OF DISMISSAL

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

B.

12

Timeliness of the Petition
The following facts are undisputed. Petitioner was sentenced on June 25, 2007 in the

13

Santa Clara Superior Court. Petitioner did not appeal his conviction. Therefore, his

14

conviction became final on August 24, 2007, that is, 60 days after the imposition of sentence.

15

See Cal. Rule of Court 8.308(a). Petitioner, then, had until August 25, 2008 to file a timely

16

federal habeas petition. The instant petition was filed on December 13, 2010, well after the

17

August 2008 deadline. On this record, absent tolling, the petition is barred by AEDPA’s

18

statute of limitations. Petitioner has not filed an opposition to the motion to dismiss.

19

Petitioner is not entitled to statutory tolling because he did not pursue any state

20

collateral relief. See 28 U.S.C. § 2244(d)(2). Nor is petitioner entitled to equitable tolling, as

21

he has not even requested such tolling, the motion being unopposed. On this record, the

22

petition is untimely and will be dismissed.

23
24

CONCLUSION
Respondent’s motion to dismiss the petition as untimely (Docket No. 5) is

25

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

26

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

27

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

28
2

No. C 10-5649 RS (PR)
ORDER OF DISMISSAL

1

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

2

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

3

The Clerk shall enter judgment in favor of respondent, terminate Docket No. 5, and close the

4

file.

5

IT IS SO ORDERED.

6

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

7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

No. C 10-5649 RS (PR)
ORDER OF DISMISSAL