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)

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*E-Filed 11/23/11*

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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 11-1813 RS (PR)

D. OTTINGER,

JAMES D. HARTLEY, 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 unopposed motion to dismiss the

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petition as untimely (Docket No. 17) is GRANTED. The petition is DISMISSED.

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DISCUSSION
A.

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 11-1813 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.

Timeliness of the Petition

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The following facts are undisputed. Petitioner was sentenced on December 5, 2003 in

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the Santa Clara Superior Court. The state appellate court affirmed his conviction on January

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21, 2005. Petitioner did not appeal his conviction to the state supreme court. Therefore, his

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conviction became final on March 22, 2005, that is, 60 days after his sentence was affirmed.

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See Cal. Rule of Court 8.308(a). Petitioner, then, had until March 23, 2006 to file a timely

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federal habeas petition. The instant petition was filed on March 7, 2011, well after the March

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2006 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.

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Petitioner filed his first post-appellate decision document on November 7, 2008,

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which was a motion for a modification of his sentence. This motion was denied by the

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superior and appellate courts, whose decisions were not appealed to the state supreme court.

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Petitioner filed a habeas petition with the state supreme court on November 4, 2010, which

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that court denied as untimely in December 2010.

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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

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No. C 11-1813 RS (PR)
ORDER OF DISMISSAL

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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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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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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.

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United States District Court
For the Northern District of California

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Because the limitations period expired prior to the filing of what might be construed as the

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first state habeas petition, petitioner is not entitled to statutory tolling. Accordingly, absent

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equitable tolling, the petition is untimely and must be dismissed.

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2.

Equitable Tolling

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Petitioner has not filed an opposition, and therefore he has not provided any basis on

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which equitable tolling can be granted. Accordingly, the motion to dismiss will be granted.
CONCLUSION

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Respondent’s motion to dismiss the petition as untimely (Docket No. 17) 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).

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

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the file.

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IT IS SO ORDERED.

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DATED: November 23, 2011
RICHARD SEEBORG
United States District Judge

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No. C 11-1813 RS (PR)
ORDER OF DISMISSAL