Solis v. Hill
Filing
25
OPINION AND ORDER. The Petition for Writ of Habeas Corpus 2 is DISMISSED on the basis that it is untimely. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. Signed on 6/02/2011 by Judge Owen M. Panner. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
JUAN CARLOS SOLIS,
Civil No. 10-92S-PA
Petitioner,
v.
JEAN HILL,
OPINION AND ORDER
Respondent.
Juan Carlos
Snake River
777 Stanton
Ontario, OR
Solis, #13496424
Correctional Institution
Blvd.
97914
Petitioner, Pro Se
John R. Kroger, Attorney General
Kristen E. Boyd, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
PANNER, District Judge.
Peti tioner
u. S. C.
§
2254
brings
this
habeas
corpus
case
pursuant
to
28
challenging the legality of his underlying state
convictions for Murder and Robbery.
For the reasons that follow,
the Petition for Writ of Habeas Corpus
[2]
is dismissed on the
basis that it is untimely.
BACKGROUND
On August
25,
2004,
petitioner was
indicted on
counts in the Umatilla County Circuit Court.
41
felony
Petitioner entered
into a plea deal where he pled guilty to one count of Felony Murder
and four
counts of Robbery in the
First Degree,
and the State
agreed to drop the remaining charges and agreed not to pursue other
criminal
cases
against
him.
Respondent's
Exhibit
103.
As
a
result, the trial court sentenced petitioner to life with a 25-year
minimum
sentences
sentence
for
for
each
Felony
charge
of
Murder,
Robbery
and
in
concurrent
the
First
90-month
Degree.
Respondent's Exhibit 101.
Petitioner did not take a direct appeal, but filed for post
conviction relief
("PCR")
in Malheur County where the PCR trial
court denied relief on all of his claims.
137.
Respondent's Exhibit
The Oregon Court of Appeals affirmed the lower court without
opinion,
and the Oregon Supreme Court denied review.
Solis v.
Nooth, 232 Or. App. 440, 220 P.3d 1140 (2009), rev. denied 347 Or.
608, 226 P.3d 43 (2010).
2 - OPINION AND ORDER
Petitioner filed his Petition for Writ of Habeas Corpus on
August 6,
2010,
and he concedes that the Petition was not filed
within the applicable limitations period.
that
he
is
limi tat ions
entitled
due
to
to his
equitable
He contends, however,
tolling
of
the
statute
of
confinement wi thin the Segregation Unit
within his prison.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act
was enacted on April 24,
1996.
("AEDPA")
AEDPA provides that a one-year
statute of limitations applies to federal habeas corpus actions
filed by state prisoners.
The one-year period runs from the latest
of:
(A)
the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(8) the date on which the impediment to filing an application
created by State action in violation of the Constitution
or laws of the United States is removed, if the applicant
was prevented from filing by such State action;
(C)
the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review;
or
(D)
the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. 2244 (d) (1).
The period of direct review also includes the 90-day period
within
which
a
petitioner
3 - OPINION AND ORDER
can
file
a
petition
for
writ
of
certiorari with the United States Supreme Court, whether or not he
actually files such a petition.
(9th Cir. 1999).
Bowen v. Roe, 188 F.3d 1157, 1159
In addition, n[tJhe time during which a properly
filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this
sub sec t ion. n
In
2 8 U. S . C.
this
case,
as
§
2 2 4 4 (d) (2) .
alleged
judgment issued on April 5,2006.
Exhibit 101.
in
the
Petition,
the
criminal
Petition [2J, p. 1; Respondent's
Under Oregon law, petitioner had 30 days in which to
take a direct appeal.
ORS 19.255(1).
As petitioner did not take
a direct appeal, AEDPA's statute of limitations began to run on May
5, 2006 when his time for appealing expired,l and it continued to
run unabated until petitioner signed his PCR action on March 6,
2007.
See Saffold v. Newland, 224 F.3d 1087, 1091 (9th Cir. 2000)
(date of filing for pro se inmate is the date he signs his papers
and hands them to prison authorities for mailing) .
According
to
the
court's
calculation,
305
untolled
days
elapsed between the conclusion of petitioner's direct appeal and
the filing of his PCR action.
AEDPA's statute of limitations once
again resumed when the PCR appellate judgment was issued on March
The period of direct review in this case does not include
the 90 days in which to file a petition for writ of certiorari
where petitioner did not take a direct appeal in Oregon's state
courts.
See 28 U.S.C. § 1257 (limiting U.S. Supreme Court review
to final judgments and decrees from the highest court of a state) .
4 - OPINION AND ORDER
25, 2010, and petitioner had until May 24,
his
Petition
for
Writ
of
Habeas
2010 in which to file
Corpus.
Peti tioner
did
however, sign and mail the Petition until July 27, 2010.
[2], p. 15.
not,
Petition
As a result, he breached AEDPA's one-year statute of
limitations by 64 days, allowing a total of 429 untolled days to
accrue prior to filing this action.
Petitioner asks the court to equitably toll the statute of
limitations due to his placement in his prison's Segregation Unit
which,
he claims, made it impossible for him to timely file his
Petition.
Equi table tolling is available to toll the one-year
statute of limitations available to 28 U.S.C.
cases.
Holland
litigant
(1)
seeking
v.
to
Florida,
invoke
130
S.Ct.
equitable
§
2254 habeas corpus
2549,
2560
tolling
must
(2010).
A
establish:
that he has been pursuing his rights diligently and (2)
that
some extraordinary circumstance prevented him from timely filing
his petition.
Pace v. DiGuglielmo,
544 U.S.
408,
418
(2005).
A
petitioner who fails to file a timely petition due to his own lack
of diligence is not entitled to equitable tolling.
Long,
253 F.3d 494,
504
(9th Cir.
2001).
Tillema
v.
Petitioner bears the
burden of showing that this "extraordinary exclusion" should apply
to him. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
According to petitioner, he was placed in the Segregation Unit
at his prison from May 5, 2010 until September 15, 2010.
that
the
restraints
attendant
5 - OPINION AND ORDER
to
such
incarceration
He claims
made
it
impossible for him to timely file this case.
While petitioner
declares that he was housed in the Segregation Unit from May 5,
2010 until September 15, 2010, the Oregon Department of Corrections
housing history database shows that he was not actually placed in
the Segregation Unit until June 5, 2010, twelve days after AEDPA's
statute of limitations had expired.
Respondent's Exhibit 143.
Because petitioner was not placed in the Segregation Unit
until after AEDPA' s
cannot
show that
statute of limitations had already run,
such placement made
timely file this case.
equitable tolling.
it
impossible
for
he
him to
Accordingly, petitioner is not entitled to
His Petition is therefore subject to dismissal
on the basis that it is untimely.
CONCLUSION
The Petition for Writ of Habeas Corpus [2J is DISMISSED on the
basis
that
it
is
untimely.
The
court
declines
to
issue
a
Certificate of Appealability on the basis that petitioner has not
made a substantial showing of the denial of a constitutional right
pursuant to 28 U.S.C. § 2253 (c) (2).
IT IS SO ORDERED.
DATED this
7/'
day
Owen M. Panner
United States District Judge
6 - OPINION AND ORDER
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