Huerta v. Cain
Filing
45
OPINION AND ORDER:The Petition for Writ of Habeas Corpus 1 is dismissed on the basis that it is untimely. Signed on 7/9/18 by Judge Michael W. Mosman. **4 PAGE(S), PRINT ALL**(Andy Huerta, Prisoner ID: 16700407) (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ANDY HUERTA,
Case No. 2:17-cv-00456-MO
Petitioner,
OPINION AND ORDER
v.
BRAD CAIN,
Respondent.
MOSMAN, District Judge.
Petitioner brings
U.S.C.
§
2254
this
challenging
habeas
the
corpus
legality
case pursuant
of
his
to
28
state-court
convictions for Murder, Attempted Aggravated Murder, and Robbery
in the Second Degree.
Respondent asks the Court to dismiss the
Pe ti ti on for Writ of Habeas Corpus because it is untimely.
the
reasons
that
follow,
the Court
finds
For
Pe ti ti oner failed to
timely file this case such that dismissal is appropriate.
STANDARDS
The Antiterrorism and Effective Death Penalty Act ("AEDPA")
was enacted on April 24, 1996. AEDPA provides that a one-year
1 - OPINION AND ORDER
statute of limitations applies to federal habeas corpus actions
filed by state prisoners. The one-year period runs from the
latest of:
(A)
(B)
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)
28
the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;
the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
u.s.c.
2244 (d) (1).
The period of direct review also includes the 90-day period
within
which
a
petitioner
can
file
a
petition
for
writ
of
certiorari with the United States Supreme Court,
whether or not
he actually files such a petition.
Bowen v. Roe,
188 F.3d 1157,
"The time during which a
properly filed
1159
(9th Cir.
1999).
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
subsection." 28 U.S.C. § 2244 (d) (2).
Ill
Ill
2 - OPINION AND ORDER
of
limitation
under
this
DISCUSSION
On
August
22,
2011,
Petitioner
pleaded
guilty
in
Marion
County to Murder, Attempted Aggravated Murder, and Robbery in the
Second Degree. As a result, the trial court sentenced him to life
in prison with a 25-year minimum on the Murder conviction,
105
consecutive
months
in
prison
on
the
and
Attempted Aggravated
Murder conviction. Respondent's Exhibit 104.
When Petitioner did not take a direct appeal,
one-year statute of limitations began to
2011,
the AEDPA' s
run on September 21,
30 days after entry of the trial court's judgment. See ORS
138.071
(direct
appeals
must
be
filed
within
30
days).
The
statute of limitations ran unabated until Pe ti ti oner filed for
post-conviction relief
of
215
days
("PCR")
accrued
on April 23,
toward
the
AEDPA's
2012.
Thus,
one-year
a total
statute
of
limitations.
Petitioner's filing of his PCR action tolled the statute of
limitations during the pendency of the state collateral action
until
August
2,
2016,
the
date
on
which
the
PCR
appellate
judgment issued. Respondent's Exhibit 146. Petitioner then waited
until March 17,
Corpus,
allowing
2017
to
file
another
227
his
Petition for Writ
days
to
accrue.
of Habeas
Thus,
in
sum,
Petitioner allowed 442 untolled days to accrue before filing this
case.
Petitioner
nevertheless
asserts
that
his
case
is
timely
because he is entitled to the 90-day period in which to file for
3 - OPINION AND ORDER
certiorari after the completion of his PCR proceedings even where
he did not seek certiorari in the Supreme Court. As noted above,
a habeas petitioner is entitled to the 90-day certiorari period
following his direct review. He is not, however, entitled to the
90-day
same
proceedings.
Accordingly,
period
following
Lawrence
v.
the
Florida,
conclusion
549
U.S.
of
327,
his
337
PCR
(2007).
the Petition fails to comply with the AEDPA's one-
year statute of limitations.
CONCLUSION
The Petition for Writ of Habeas Corpus (#1)
the
basis
that
it
is
untimely.
is dismissed on
The Court declines
to
issue
a
Certificate of Appealability on the basis that Petitioner has not
made
a
substantial
showing
right pursuant to 28 U.S.C.
IT IS SO
of
§
the
denial
of
a
constitutional
2253(c) (2).
ORDER~.
DATED this
C(
'~day of July, 2018.
Michael W. Mo
I
United States
4 - OPINION AND ORDER
Judge
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