Ledee v. Spearman

Filing 15

ORDER by Judge James Donato granting 10 Motion to Dismiss. (jdlc1S, COURT STAFF) (Filed on 9/22/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LAWRENCE LEDEE, Plaintiff, 8 9 10 United States District Court Northern District of California 11 12 Case No.16-cv-04616-JD ORDER RE MOTION TO DISMISS v. Re: Dkt. No. 10 M ELLIOT SPEARMAN, Defendant. Defendant M. Elliot Spearman moves to dismiss Lawrence Ledee’s petition for writ of 13 habeas corpus on the grounds that it is untimely and procedurally defaulted. The petition is 14 dismissed as untimely under 28 U.S.C. § 2244(d). 15 16 DISCUSSION Section 2244(d) provides a one-year period of limitation for a habeas petition by a person 17 in custody pursuant to a state court judgment. This period begins on the latest of four dates, 18 described in Sections 2244(d)(1)(A) through (D). Most pertinent here is the application of Section 19 2244(d)(1)(D), “the date on which the factual predicate of the claim or claims presented could 20 have been discovered through the exercise of due diligence.” 21 Ledee argues that the factual predicate of his claim was not discovered until February 9, 22 2015, and that the claim “relies on a newly discovered legal issue.” Dkt. No. 13 at 4-5. Both of 23 these arguments miss the mark. In addition to showing that the claim was not actually discovered, 24 Ledee must show that the facts could not have been discovered through the exercise of due 25 diligence. Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). All of the facts underlying 26 Ledee’s petition could have been discovered through the exercise of due diligence by the date of 27 the sentencing hearing, October 17, 2012. Dkt. No. 1; see United States v. Battles, 362 F.3d 1195, 28 1 1998. Counsel’s formulation of a new legal theory based on known facts does not count against 2 the limitations period. Ford, 683 F.3d at 1235. 3 Ledee does not dispute that his conviction became final on May 20, 2014 for purposes of 4 Section 2244(d)(1)(A), and that Sections 2244(d)(1)(B) and (C) do not apply. Dkt. No. 13 at 4-5. 5 In that case, the petition is untimely irrespective of whether statutory tolling is appropriate under 6 Section 2244(d)(2) during the pendency of Ledee’s state habeas petition. Dkt. No. 10 at 4; Dkt. 7 No. 13 at 4 (“Petitioner does not dispute Respondent’s calculations”). Ledee makes no argument 8 for equitable tolling, and the Court does not find it appropriate here. Consequently, the petition is 9 dismissed with prejudice. 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: September 22, 2017 12 13 JAMES DONATO United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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