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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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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ORDER OF DISMISSAL

Petitioner,

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No. C 11-3349 YGR (PR)

DARRELL JOHNSON,

v.
WILLIAM KNIPP,

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Respondent.
/

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INTRODUCTION

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This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se

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state prisoner. For the reasons discussed herein, respondent’s motion to dismiss the petition

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as untimely (Docket No. 13) is GRANTED. The petition is DISMISSED.

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DISCUSSION
A.

Standard of Review

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Federal habeas petitions must be filed within one year of the latest of the date on

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which: (1) the judgment became final after the conclusion of direct review or the time passed

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for seeking direct review; (2) an impediment to filing an application created by

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unconstitutional state action was removed, if such action prevented petitioner from filing; (3)

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No. C 11-3349 YGR (PR)
ORDER OF DISMISSAL

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

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recognized by the Supreme Court and made retroactive to cases on collateral review; or (4)

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the factual predicate of the claim could have been discovered through the exercise of due

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diligence. See 28 U.S.C. § 2244(d)(1). “[W]hen a petitioner fails to seek a writ of certiorari

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from the United States Supreme Court, the AEDPA’s one-year limitations period begins to

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run on the date the ninety-day period defined by Supreme Court Rule 13 expires.” Bowen v.

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Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

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B.

Timeliness of the Petition
The following facts are undisputed. On January 14, 2009, the state supreme court denied

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United States District Court
For the Northern District of California

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petitioner’s petition for direct review of his 2006 convictions for forcible rape and forcible oral

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copulation. Petitioner did not seek state collateral relief. Petitioner, then, had until April 14,

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2010, that is, one year and ninety days from the date the state supreme court issued its decision,

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to file a timely federal habeas petition. The instant petition, however, was not filed until July

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7, 2011, well after the April 14, 2010 deadline. On this record, absent statutory or equitable

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tolling, the petition is barred by AEDPA’s statute of limitations.1

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1.

Statutory Tolling

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Petitioner never sought collateral state relief. Accordingly, he is not entitled to

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statutory tolling, as there was no time period during which a properly filed application for

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state post-conviction or other collateral review was pending. See 28 U.S.C. § 2244(d)(2).

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Petitioner did, however, file two federal habeas petitions in this court, one in 2009 and

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the other in 2010.2 Both were dismissed because the claims were not exhausted. No tolling

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is available under § 2244(d) for such petitions. Duncan v. Walker, 533 U.S. 167, 172–74

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(2001).

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In sum, petitioner is not entitled to statutory tolling.

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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
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No. C 09-0409 CW, and C 10-0840 CW.
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No. C 11-3349 YGR (PR)
ORDER OF DISMISSAL

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2.

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Petitioner has given no reasons entitling him to equitable tolling. Accordingly, he is

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Equitable Tolling

not entitled to relief from the statute of limitations on such grounds.
CONCLUSION

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For the reasons stated above, respondent’s motion to dismiss the petition as untimely

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(Docket No. 13) is GRANTED. Accordingly, the action is DISMISSED. The Clerk shall

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enter judgment in favor of respondent, terminate Docket No. 13, and close the file.

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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

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constitutional right and that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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IT IS SO ORDERED.
DATED:

November 13, 2012
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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No. C 11-3349 YGR (PR)
ORDER OF DISMISSAL