Burke v. Nooth

Filing 19

Findings & Recommendation: The Petitioner's Petition should be denied on the ground that it was not timely filed. Objections to the Findings and Recommendation are due by 8/31/2009. If objections are filed, responses will be due 10 days after objections have been filed. Please access entire text by document number hyperlink. Signed on 08/12/2009 by Magistrate Judge Mark D. Clarke. (rsm)

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I N THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON JERRY L . BURK, S R . , Petitioner, C i v i l No. OJ-1359-CL REPORT AND RECOMMENDATION

v.
MARK NOOTH, Respondent. CLARKE, M a g i s t r a t e J u d g e .

Petitioner i s an inmate in the custody of the Oregon Department of Corrections (ODOC) pursuant to the Amended

J u d g m e n t o f C o n v i c t i o n a n d S e n t e n c e , d a t e d May 2 5 , 2 0 0 4 , f r o m Washington County C i r c u i t Court Case No. C031934CR, after

convictions for Sexual Abuse in the F i r s t Degree (six counts) , Sexual Abuse in the Third Degree (three counts), and Tampering w i t h a Wi t n e s s . Respondent's Exhibit 101. Following a no

contest plea, the court sentenced p e t i t i o n e r to a t o t a l of 162 months imprisonment. Petitioner did rd. not directly appeal his conviction.

1 - REPORT AND RECOMMENDATION

Petitioner f i l e d a p e t i t i o n f o r p o s t - c o n v i c t i o n r e l i e f , b u t the court denied r e l i e f , the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. The appellate judgment issued on January 16, 2009.

Respondent's Exhibit 103. On N o v e m b e r 1 7 , 2008, petitioner filed a petition for
§

habeas corpus r e l i e f under 28 U.S.C.

2254. 1

Respondent moves to deny p e t i t i o n e r ' s claims and dismiss t h i s proceeding on the ground i t was not f i l e d within the time prescribed by 28 U.S.C. Response (#8). The Anti-Terrorism and Effective Death Penalty Act of 1 9 9 6 (AEDPA) w h i c h b e c a m e e f f e c t i v e o n A p r i l 1 4 , 1 9 9 6 , a m e n d e d 28 U.S.C.
§
§

2254.

Answer

(#9)

p.

2,

and

2244 to provide a limitations period for f i l i n g a Under § 2244 (d), a p e t i t i o n e r

federal habeas corpus petition.

now h a s o n e y e a r f r o m t h e d a t e a d i r e c t a p p e a l i s f i n a l t o file a petition under is 28 U.S.C.
§

2254. the

The time

one a

year state

limitations

period

tolled

during

collateral proceeding is pending. and before collateral disposition filing, and

Time elapsed a f t e r f i n a l i t y and time after the final counts

collateral

before

federal

filing

against the year. Cir. 1999).

N i n o v . G a l a z a , 183 F . 3 d 1 0 0 3 , 1 0 0 6 - 7 (9 th

lAt the time p e t i t i o n e r f i l e d his federal p e t i t i o n , his s t a t e post-conviction appeal was pending. P e t i t i o n e r ' s s t a t e PCR proceeding concluded on January 16, 2009. See, Response (#8) p. l . For the reasons set forth herein, this jurisdictional issue is immaterial to the appropriate disposition of petitioner's claims. 2 - REPORT AND RECOMMENDATION

The

judgment

on

the

convictions

challenged

in

this 2004.

p r o c e e d i n g w a s e n t e r e d i n t o t h e r e g i s t e r o n May 2 7 , Respondent I s Exhibit 101.

Even though petitioner did not

d i r e c t l y a p p e a l h i s c o n v i c t i o n s , p u r s u a n t t o ORS 1 9 . 2 5 5 ( 1 ) h e had 30 days from the entry of the judgment to do so.

Therefore, an additional 30 days should be added t o the date of the t r i a l court judgment, or June 28, 2004. P u r s u a n t t o Bowen v . Roe, 1 8 8 F . 3 d 1 1 5 7 (9 th C i r . 1 9 9 9 ) , criminal convictions are not final until the time has elapsed for seeking c e r t i o r a r i in the u . s . Supreme Court. In this

case, however, petitioner could not have sought certiorari in the u.S. Supreme Court because he did not f i r s t p e t i t i o n the Oregon appellate courts. See, 28 U.S.C.
§

1257(a)

("Final

judgments or decrees rendered by the highest court of a State
in which a decision could be had ,

may be reviewed by t h e

Supreme C o u r t b y w r i t o f c e r t i o r a r i . . . 11). T h u s , p e t i t i o n e r i s n o t e n t i t l e d t o t h e 90 e x t r a d a y s t h a t h a b e a s p e t i t i o n e r s normally have to seek certiorari in the Supreme Court when they have properly presented federal claim to the state I s appellate courts. Thus, petitioner had one year from June 28, 2004,

excluding any time during which a state post-conviction case, or other c o l l a t e r a l remedy, was pending, t o f i l e a federal habeas
co~pus

petition.

Petitioner signed a petition for post-conviction relief

3 - REPORT AND RECOMMENDATION

(Respondent's E x h i b i t 1 0 2 ) o n O c t o b e r 1 0 , 2 0 0 5 , b u t t h e c o u r t denied relief. On appeal, the Oregon Court of Appeals

affirmed without opinion and the Oregon Supreme Court denied review. The appellate judgment issued on January 16, 2009.

Respondentls Exhibit 103. Between June 28, 2004, the latest date on which

petitioner could have filed a notice of appeal with the Oregon Court of Appeals, and October 10, 2005, the date on which

p e t i t i o n e r signed the p e t i t i o n for post conviction r e l i e f , 469 days accrued, which exceeds the 365 days provided under the federal statute. Under some circumstances, the l i m i t a t i o n s period may be waived under the doctrine of Equitable tolling. Prunty, 187 F.3d 1104, entitlement period, a 1 1 0 7 (9 th C i r . to tolling of must 1999). the
§

Miles v.

In order to 2254(d) (1) that

establish limitations

petitioner

demonstrate

extraordinary circumstances beyond the p r i s o n e r ' s control made i t impossible to f i l e the petition on time. Allen v. Lewis,

2 5 5 F . 3 d 7 9 8 , 7 9 9 (9 th C i r . 2 0 0 1 ) i s e e a l s o , G r e e n v . W h i t e , 2 2 3 F . 3 d 1 0 0 1 , 1 0 0 3 ( 9 t h Ci r . 2 0 0 0 ) . In this case, petitioner has not alleged any

circumstances that would establish entitlement to tolling of the limitations period. Based on the foregoing, p e t i t i o n e r I s p e t i t i o n (#2) should be denied on the ground t h a t i t was not timely f i l e d . the statute of limitations issue is dispositive, 4 - REPORT AND RECOMMENDATION Because

i t is not

necessary t o a d d r e s s t h e o t h e r i s s u e s r a i s e d i n r e s p o n d e n t ' s Response. This proceeding should be dismissed. This recommendation i s not an order that i s immediately appealable to the Ninth Circuit Court of Appeals. Any notice

of appeal pursuant t o Rule 4 (a) (1), Federal Rules of Appellate Procedure, should not be filed until entry of the d i s t r i c t The p a r t i e s s h a l l have copy of this written

court's judgment or appealable order. ten
(10)

days from the date of service of a within which to file

recommendation

specific

objections with the court. Thereafter, the parties have ten
(10)

days within which to f i l e a response to the objections. to timely file objections to any factual

Failure

determinations of the Magistrate Judge will be considered a waiver of a party's right to de
!!QYQ

consideration of the

factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the

recommendation. DATED t h i s

\~~ay

5 - REPORT AND RECOMMENDATION