Starks v. Hennessey

Filing 12

ORDER DISMISSING PETITION; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Phyllis J. Hamilton on 5/1/18. ***Civil Case Terminated. (Certificate of Service Attached) (kcS, COURT STAFF) (Filed on 5/1/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARION C. STARKS,
Petitioner,

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Case No. 18-cv-00683-PJH
ORDER DISMISSING PETITION;
DENYING CERTIFICATE OF
APPEALABILITY

v.
MICHAEL HENNESSEY, et al.,

Re: Dkt. No. 11

Respondent.

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United States District Court
Northern District of California

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Petitioner, a former California prisoner, filed a pro se petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. The original petition was dismissed with leave to

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amend and he has filed an amended petition.
BACKGROUND

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Petitioner states that he was acquitted after a jury trial but was falsely imprisoned

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from 2008 to 2010. Docket No. 10 at 1-2. He states he filed appeals that were denied by

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the state courts in 2010 and 2012. Docket No. 1 at 3.
DISCUSSION

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STANDARD OF REVIEW

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This court may entertain a petition for writ of habeas corpus “in behalf of a person
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in custody pursuant to the judgment of a State court only on the ground that he is in
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custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
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§ 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet
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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An
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application for a federal writ of habeas corpus filed by a prisoner who is in state custody
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pursuant to a judgment of a state court must “specify all the grounds for relief available to
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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules
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Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the

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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”

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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.

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1970)).

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LEGAL CLAIMS

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Petitioner’s claims are not entirely clear nor are the circumstances surrounding his
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trial and incarceration. The petition was dismissed with leave to amend to provide more
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information concerning his claims and to address their timeliness. He has failed to
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provide any additional information.
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To the extent petitioner seeks to challenge a conviction from 2008, this case is
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United States District Court
Northern District of California

untimely by many years. The Antiterrorism and Effective Death Penalty Act of 1996
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(“AEDPA”), which became law on April 24, 1996, imposed for the first time a statute of
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limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed
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by prisoners challenging noncapital state convictions or sentences must be filed within
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one year of the latest of the date on which: (A) the judgment became final after the
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conclusion of direct review or the time passed for seeking direct review; (B) an
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impediment to filing an application created by unconstitutional state action was removed,
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if such action prevented petitioner from filing; (C) the constitutional right asserted was
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recognized by the Supreme Court, if the right was newly recognized by the Supreme
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Court and made retroactive to cases on collateral review; or (D) the factual predicate of
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the claim could have been discovered through the exercise of due diligence. 28 U.S.C. §
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2244(d)(1). Time during which a properly filed application for state post-conviction or
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other collateral review is pending is excluded from the one-year time limit. Id. §
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2244(d)(2). Petitioner states that his state appeals were denied in 2010 and 2012. The
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petition is late by many years.
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To the extent there was no conviction and petitioner seeks to bring a claim of false
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imprisonment pursuant to 42 U.S.C. § 1983, this action also appears untimely. Petitioner
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2

sta
ates he was falsely imp
s
prisoned fro 2008 to 2010. Sec
om
o
ction 1983 does not co
ontain its

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ow limitation period. The approp
wn
ns
priate perio is that of the forum state's statute of
od
f

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lim
mitations for personal in
njury torts. See Wilso v. Garcia 471 U.S. 261, 276 (1
on
a,
1985),

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superseded by statute on other gro
b
ounds as sta
ated in Jon v. R.R. D
nes
Donnelley & Sons

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Co 541 U.S. 369 377-7 (2004). In California the gene residua statute of limitations
o.,
.
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I
a,
eral
al

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for personal in
r
njury action is the two
ns
o-year perio set forth at Californ Civil Pro
od
h
nia
ocedure

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Co § 335 and is the applicable st
ode
a
tatute in § 1
1983 action See Ma
ns.
aldonado v. Harris,
.

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370 F.3d 945, 954 (9th Cir. 2004). California C Proced
C
Civil
dure Code section 352
2.1

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rec
cognizes im
mprisonmen as a disability that to the stat
nt
olls
tute of limita
ations when a person
n

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is "imprisoned on a criminal charge or in exec
"
d
e,
cution unde the sente
er
ence of a cr
riminal cour
rt

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United States District Court
Northern District of California

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for a term of less than fo life." Cal. Civ. Proc. Code § 35
r
or
52.1(a). Th tolling is not
he

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ind
definite, how
wever; the disability of imprisonm
d
f
ment delays the accrua of the cau of
al
use

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act
tion for a maximum of two years. See id. T
m
f
Thus, an inm
mate has fo years to bring a §
our
o

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1983 claim fo damages in California, i.e., the regular two year perio under se
or
o
od
ection 335,

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plu two years during wh
us
hich accrua was postp
al
poned due to the disability of imp
prisonment.

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Assuming pla
aintiff was provided fou years, thiis action wo
p
ur
ould still be untimely.
e
CONCLU
USION

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1.

The motion to proceed in forma pauperis (D
n
Docket No. 11) is DEN
NIED as

mo because he has already been granted le
oot
e
n
eave to proc
ceed in form pauperis.
ma

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2.

The petition is DISMIS
SSED and a certificate of appealability is DE
e
ENIED.

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3.

The clerk shall close this case.
s
t

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IT IS SO ORDER
S
RED.

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Da
ated: May 1, 2018

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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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3

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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MARION C. STARKS,
M

Case No. 1
18-cv-00683
3-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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MICHAEL HENNESSEY et al.,
M
H
Y,
Defendants
s.

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
strict Court, Northern Di
istrict of Cal
lifornia.
Dis

United States District Court
Northern District of California

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That on May 1, 201 I SERVE a true and correct cop
n
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ED
d
py(ies) of the attached, b placing
by
said copy(ies) in a postage paid envelo addressed to the pers
i
ope
d
son(s) herein
nafter listed, by
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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Ma
arion C. Star
rks
150 Otis St., Apt. 609
0
A
San Francisco, CA 94103
n

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Da
ated: May 1, 2018

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usan Y. Soon
ng
Su
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
K
Kelly Collins, Deputy Cle to the
,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N

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