Garza v. Hedgpeth

Filing 5

ORDER by Judge William Alsup granting 4 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (dtS, COURT STAFF) (Filed on 12/7/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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LEVI COLE GARZA,
Petitioner,

For the Northern District of California

United States District Court

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No. C 12-0603 WHA (PR)
ORDER GRANTING MOTION TO
DISMISS

v.

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ANTHONY HEDGPETH,

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Respondent.

(Docket No. 4)
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INTRODUCTION

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Petitioner, a California prisoner proceeding pro se, filed this habeas case under 28

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U.S.C. 2254. Respondent was ordered to show cause why the petition should not be granted.

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Respondent has filed a motion to dismiss on statute of limitations grounds. Although given an

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opportunity to oppose the motion, petitioner did not do so. Indeed, in his petition, he concedes

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that the petition is untimely (Pet. 12). For the reasons discussed below, respondent’s motion to

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dismiss is GRANTED.

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STATEMENT
The following facts are not disputed by the parties. In 2006, petitioner pled guilty to

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kidnapping, forcible rape and false imprisonment. He was sentenced to a term of eight years in

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state prison. On July 16, 2008, the California Court of Appeal affirmed the conviction and

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sentence, and on October 1, 2008, the California Supreme Court denied a petition for review.

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Petitioner filed the instant petition on February 6, 2008.

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ANALYSIS

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Respondent contends that the petition is barred by the statute of limitations. The

1996, and imposed for the first time a statute of limitations on petitions for a writ of habeas

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corpus filed by state prisoners. Under AEDPA, prisoners challenging non-capital state

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convictions or sentences must file petitions for relief within one year of the latest of the date on

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

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

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state action was removed, if such action prevented petitioner from filing; (C) the constitutional

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

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For the Northern District of California

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) became law on April 24,

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United States District Court

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Supreme Court and made retroactive to cases on collateral review; or (D) the factual predicate

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of the claim could have been discovered through the exercise of due diligence. 28 U.S.C.

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2244(d)(1).

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The parties do not dispute that the applicable provision of section 2244(d)(1) in this case

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is subsection (A), such that the limitations period began to run when the time for seeking direct

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review expired. The California Supreme Court denied the petition for direct review on October

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1, 2008. Petitioner then had ninety days, or until December 30, 2008, in which to file a petition

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for a writ of certiorari in the United States Supreme Court. Although he did not file such a

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petition, that is the date the time for seeking direct review expired under Section 2244(d)(1)(A),

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and therefore the date the one-year limitations period started. See Wixom v. Washington, 264

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F.3d 894, 897 (9th Cir. 2001). The limitations period expired one year later, on December 30,

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2009, absent tolling. While the limitations period may be tolled for the “time during which a

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properly filed application for state post-conviction or other collateral review with respect to the

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pertinent judgment or claim is pending” under 28 U.S.C. 2244(d)(2), petitioner did not file any

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habeas or other post-conviction petitions in the state courts. Petitioner also does not claim that

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he is entitled to equitable tolling, nor are there any grounds for such tolling apparent from the

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record. Indeed, as noted above, petitioner concedes that the petition is untimely (Pet.12) but

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argues that it should be heard anyway because, as he claimed in his petition, his sentence is not
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authorized. Such an argument, even if true, does not render the petition timely or excuse its

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untimeliness. Consequently, the petition is untimely.

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CONCLUSION
Respondent’s motion to dismiss (dkt. 4) is GRANTED. The petition for a writ of habeas
corpus is DISMISSED.

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The clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: December

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, 2012.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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G:\PRO-SE\WHA\HC.12\GARZA0603.MTDSOL.wpd

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