Johnson v. Alameda Court Superior Court

Filing 25

ORDER by Judge Yvonne Gonzalez Rogers granting 13 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 11/13/2012)

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1 2 3 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 11 12 13 ORDER OF DISMISSAL Petitioner, 14 15 No. C 11-3349 YGR (PR) DARRELL JOHNSON, v. WILLIAM KNIPP, 16 Respondent. / 17 18 INTRODUCTION 19 This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se 20 state prisoner. For the reasons discussed herein, respondent’s motion to dismiss the petition 21 as untimely (Docket No. 13) is GRANTED. The petition is DISMISSED. 22 23 DISCUSSION A. Standard of Review 24 Federal habeas petitions must be filed within one year of the latest of the date on 25 which: (1) the judgment became final after the conclusion of direct review or the time passed 26 for seeking direct review; (2) an impediment to filing an application created by 27 unconstitutional state action was removed, if such action prevented petitioner from filing; (3) 28 No. C 11-3349 YGR (PR) ORDER OF DISMISSAL 1 the constitutional right asserted was recognized by the Supreme Court, if the right was newly 2 recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) 3 the factual predicate of the claim could have been discovered through the exercise of due 4 diligence. See 28 U.S.C. § 2244(d)(1). “[W]hen a petitioner fails to seek a writ of certiorari 5 from the United States Supreme Court, the AEDPA’s one-year limitations period begins to 6 run on the date the ninety-day period defined by Supreme Court Rule 13 expires.” Bowen v. 7 Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). 8 B. Timeliness of the Petition The following facts are undisputed. On January 14, 2009, the state supreme court denied 10 United States District Court For the Northern District of California 9 petitioner’s petition for direct review of his 2006 convictions for forcible rape and forcible oral 11 copulation. Petitioner did not seek state collateral relief. Petitioner, then, had until April 14, 12 2010, that is, one year and ninety days from the date the state supreme court issued its decision, 13 to file a timely federal habeas petition. The instant petition, however, was not filed until July 14 7, 2011, well after the April 14, 2010 deadline. On this record, absent statutory or equitable 15 tolling, the petition is barred by AEDPA’s statute of limitations.1 16 1. Statutory Tolling 17 Petitioner never sought collateral state relief. Accordingly, he is not entitled to 18 statutory tolling, as there was no time period during which a properly filed application for 19 state post-conviction or other collateral review was pending. See 28 U.S.C. § 2244(d)(2). 20 Petitioner did, however, file two federal habeas petitions in this court, one in 2009 and 21 the other in 2010.2 Both were dismissed because the claims were not exhausted. No tolling 22 is available under § 2244(d) for such petitions. Duncan v. Walker, 533 U.S. 167, 172–74 23 (2001). 24 In sum, petitioner is not entitled to statutory tolling. 25 1 Respondent also moved to dismiss on grounds that petitioner failed to exhaust his claims in state court. Because the petition would be untimely even if the claims had been 27 exhausted, it is unnecessary to address respondent’s exhaustion contentions. 2 No. C 09-0409 CW, and C 10-0840 CW. 28 26 2 No. C 11-3349 YGR (PR) ORDER OF DISMISSAL 1 2. 2 Petitioner has given no reasons entitling him to equitable tolling. Accordingly, he is 3 Equitable Tolling not entitled to relief from the statute of limitations on such grounds. CONCLUSION 4 5 For the reasons stated above, respondent’s motion to dismiss the petition as untimely 6 (Docket No. 13) is GRANTED. Accordingly, the action is DISMISSED. The Clerk shall 7 enter judgment in favor of respondent, terminate Docket No. 13, and close the file. 8 9 A certificate of appealability will not issue. Petitioner has not shown “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a United States District Court For the Northern District of California 10 constitutional right and that jurists of reason would find it debatable whether the district court 11 was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 12 13 IT IS SO ORDERED. DATED: November 13, 2012 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 No. C 11-3349 YGR (PR) ORDER OF DISMISSAL

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