Ottinger v. Hartley

Filing 18

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 11/23/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 11/23/2011)

Download PDF
1 2 3 *E-Filed 11/23/11* 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 11-1813 RS (PR) D. OTTINGER, JAMES D. HARTLEY, Warden, Respondent. 17 / 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 unopposed motion to dismiss the 22 petition as untimely (Docket No. 17) 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 11-1813 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. Timeliness of the Petition 12 The following facts are undisputed. Petitioner was sentenced on December 5, 2003 in 13 the Santa Clara Superior Court. The state appellate court affirmed his conviction on January 14 21, 2005. Petitioner did not appeal his conviction to the state supreme court. Therefore, his 15 conviction became final on March 22, 2005, that is, 60 days after his sentence was affirmed. 16 See Cal. Rule of Court 8.308(a). Petitioner, then, had until March 23, 2006 to file a timely 17 federal habeas petition. The instant petition was filed on March 7, 2011, well after the March 18 2006 deadline. On this record, absent tolling, the petition is barred by AEDPA’s statute of 19 limitations. 20 1. 21 Petitioner filed his first post-appellate decision document on November 7, 2008, 22 which was a motion for a modification of his sentence. This motion was denied by the 23 superior and appellate courts, whose decisions were not appealed to the state supreme court. 24 Petitioner filed a habeas petition with the state supreme court on November 4, 2010, which 25 that court denied as untimely in December 2010. 26 27 Statutory Tolling For purposes of statutory tolling, the time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year 28 2 No. C 11-1813 RS (PR) ORDER OF DISMISSAL 1 limitations period. See § 2244(d)(2). Petitioner is not entitled to statutory tolling. A state 2 habeas petition filed after AEDPA’s statute of limitations ended, such as the May 1, 2009 3 state habeas petition, cannot toll the limitation period. See Ferguson v. Palmateer, 321 F.3d 4 820, 823 (9th Cir. 2003). Section 2244(d)(2) cannot “revive” the limitation period once it 5 has run (i.e., restart the clock to zero); it can only serve to pause a clock that has not yet fully 6 run. “Once the limitations period is expired, collateral petitions can no longer serve to avoid 7 the statute of limitations.” Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998). 8 Petitioner’s first filing after the state appellate court rendered its decision on direct review was filed on November 7, 2010, which was well after the March 23, 2006 deadline. 10 United States District Court For the Northern District of California 9 Because the limitations period expired prior to the filing of what might be construed as the 11 first state habeas petition, petitioner is not entitled to statutory tolling. Accordingly, absent 12 equitable tolling, the petition is untimely and must be dismissed. 13 2. Equitable Tolling 14 Petitioner has not filed an opposition, and therefore he has not provided any basis on 15 which equitable tolling can be granted. Accordingly, the motion to dismiss will be granted. CONCLUSION 16 Respondent’s motion to dismiss the petition as untimely (Docket No. 17) is 17 18 GRANTED. Accordingly, the petition is DISMISSED. Judgment will be entered in favor of 19 respondent. A certificate of appealability will not issue. Petitioner has not shown “that 20 jurists of reason would find it debatable whether the petition states a valid claim of the denial 21 of a constitutional right and that jurists of reason would find it debatable whether the district 22 court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 23 The Clerk shall enter judgment in favor of respondent, terminate Docket No. 17, and close 24 the file. 25 IT IS SO ORDERED. 26 DATED: November 23, 2011 RICHARD SEEBORG United States District Judge 27 28 3 No. C 11-1813 RS (PR) ORDER OF DISMISSAL

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?