Kessler v. Premo
Filing
35
OPINION AND ORDER. Petitioner's amended habeas corpus petition 10 is DENIED as untimely, and this proceeding is DISMISSED, with prejudice. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Signed on 11/9/2011 by Judge Garr M. King. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
STEPHEN M. KESSLER,
Petitioner,
v.
JEFF PREMO, Superintendent,
Respondent.
Stephen M. Kessler
SID #2059426
2605 State Street
Salem, Oregon, 97310
Petitioner, Pro Se
John R. Kroger
Attorney General
Lynn David Larsen
Attorney-In-Charge
Department of Justice
1162 Court Street N.E.
Salem, Oregon, 97301-4096
Attorneys for Respondent
KING, Judge
1 -- OPINION AND ORDER
3:10-cv-747-KI
OPINION AND ORDER
Petitioner, an inmate at the Oregon State Penitentiary, brings
this habeas corpus proceeding pursuant to 28 U.S.C. § 2254.
For
the reasons set forth below, petitioner's amended petition is
DENIED, and this proceeding is DISMISSED, with prejudice.
BACKGROUND
In November, 1982, petitioner was convicted in federal court
on charges of conspiracy to commit bank robbery, bank robbery,
distribution of heroin, and receipt of money taken illegally from
a bank. On or about December 28, 1982, petitioner was sentenced to
a 55-year term of imprisonment.
Resp. Exhs. 116 & 117; United
States v. Guerrero, et al., 756 F.2d 1342, 1345 (9th Cir. 1984),
cert. denied, 469 U.S. 934 (1984).
In the interim, on December 13, 1982, petitioner pled guilty
in state court to one count of Attempted Aggravated Murder, one
count of Attempted Murder, one count of Assault in the First
Degree, one count of Escape in the First Degree, two counts of
Kidnapping in the First Degree, and four counts of Kidnapping in
the Second Degree.
The charges arose out of an incident in which
six inmates, including defendant, escaped from Rocky Butte Jail
and, during the course of the escape, took four lay ministers and
two
correctional
officials
hostage.
On
December
27,
1982,
petitioner was sentenced to 90 years imprisonment, with a 40-year
minimum
term.
Petitioner's
unsuccessfully, in 1984.
2 -- OPINION AND ORDER
direct
appeal
concluded,
State v. Kessler, 65 Or. App. 380, 382,
671 P.2d 749 (1983) (modifying sentence imposed by the trial
court), rev'd, 297 Or. 460, 686 P.2d 345 (1984) (reinstating
judgment of the trial court).
Petitioner began service of his federal sentence in 1983, and
completed service of his federal sentence on or about June 6, 2007,
at which time he was transferred to state custody to begin service
of his state sentence.
Exhs. 117 & 119.
See Amended Petition (#10) at 3; Resp.
Upon his transfer to state custody, petitioner
allegedly was in “medical quarantine [for] several months,” but
offers no details as to his access to legal materials during that
time.
Amended Petition at 4.
On or about June 25, 2008, petitioner filed a petition for
state post-conviction relief.
Resp. Exh. 105 at 11.
court denied the petition as untimely.
The state
Resp. Exhs. 107 & 108.
The
Oregon Court of Appeals affirmed without opinion, the Oregon
Supreme Court denied review, and the United States Supreme Court
denied petitioner's petition for writ of certiorari.
Kessler v.
Belleque, 233 Or. App. 510, 226 P.3d 130 (2010), rev. denied, 348
Or. 291 (2010), cert. denied, 131 S.Ct. 391 (2010).
Additionally, on or about August 14, 2008, petitioner filed a
state petition for writ of habeas corpus.
Resp. Exh. 112 at 16.
The petition was denied on the basis that state habeas corpus is
not an appropriate remedy.
Resp. Exhs. 113 & 114.
The Oregon
Court of Appeals affirmed without opinion, and the Oregon Supreme
3 -- OPINION AND ORDER
Court denied review.
Kessler v. Belleque, 233 Or. App. 227, 224
P.3d 708 (2009), rev. denied, 348 Or. 414 (2010).
DISCUSSION
I.
Applicable Law.
The Antiterrorism and Effective Death Penalty Act imposes a
one year statute of limitations on habeas corpus petitions filed
"by a person in custody pursuant to the judgment of a State court."
28 U.S.C. § 2244(d)(1). The limitation 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;
(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) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
Id.
State prisoners whose convictions became final prior to the
AEDPA’s enactment had a one-year grace period, until April 24,
1997, to file their petitions.
1243, 1245 (9th Cir. 2001).
4 -- OPINION AND ORDER
Patterson v. Stewart, 251 F.3d
The statute of limitations is tolled for "[t]he 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."
28 U.S.C. § 2244(d)(2) (emphasis added).
An
application or petition is “properly filed” when its delivery and
acceptance are in compliance with the applicable laws and rules
governing filings, such as rules prescribing the form of the
document, the time limits on its delivery, the court and office in
which it must be lodged, and the filing fee.
Pace v. DiGuglielmo,
544 U.S. 408, 413-14 (2005); Artuz v. Bennett, 531 U.S. 4, 8
(2000); Lakey v. Hickman, 633 F.3d 782, 785-86 (9th Cir.), cert.
denied, 131 S.Ct. 3039 (2011); White v. Martel, 601 F.3d 882, 883
(9th Cir.), cert. denied, 131 S.Ct. 332 (2010).
The limitation period may be equitably tolled upon a showing
that (1) petitioner was pursuing his rights diligently; and (2)
some extraordinary circumstances stood in his way and prevented a
timely filing.
Holland v. Florida, 130 S.Ct. 2549, 2562 (2010);
Doe v. Busby, 2011 WL 5027506 *5 (9th Cir. Oct. 24, 2011); Lakey,
633 F.3d at 786.
The propriety of equitable tolling is a fact-
specific inquiry which requires the petitioner to prove that the
extraordinary circumstance was the cause of his late filing.
Doe,
2011 WL 5027506 *5; Lakey, 633 F.3d at 786; Frye v. Hickman, 273
F.3d 1144, 1146 (9th Cir. 2001). If the petitioner did not exercise
reasonable diligence under the circumstances in attempting to file
5 -- OPINION AND ORDER
after the extraordinary circumstance began, the causal link between
the extraordinary circumstance and the failure to file is broken.
See Doe, 2011 WL 5027506 *7; Roy v. Lampert, 465 F.3d 964, 970-73
(9th Cir. 2006).
II.
Analysis.
Because petitioner’s state convictions became final prior to
the effective date of the AEDPA, he had until April 24, 1997, to
file his federal habeas corpus petition (absent statutory or
equitable tolling).
Patterson, 251 F.3d at 1245-46.
With regard to statutory tolling, I agree with respondent that
petitioner’s state post-conviction proceeding filed in 2008, and
dismissed as untimely, did not toll the limitation period because
it was not “properly filed.”
Pace, 544 U.S. at 413-14; Artuz, 531
U.S. at 8. Whether petitioner’s state habeas corpus proceeding was
“properly filed” is a more difficult question.
See Ramirez v.
Yates, 571 F.3d 993, 999 (9th Cir. 2009) (concluding that petition
for writ of coram nobis denied on the merits was properly filed).
However, I need not resolve that legal issue because, as set forth
below, petitioner’s state habeas corpus proceeding was filed after
the federal limitation period had already expired.
Petitioner contends the limitation period should be equitably
tolled during the time he was in federal custody because he was
denied access to state legal materials.
6 -- OPINION AND ORDER
Petitioner also makes
reference to being in “medical quarantine” for several months after
his transfer to state custody.
Petitioner’s Reply Brief at 4.
Petitioner offers no evidence that he exercised reasonable
diligence, between 1996 (the effective date of the AEDPA) and 2007
(his release from federal custody), to obtain access to the state
materials necessary to enable him to timely seek federal habeas
relief. Accordingly, I reject his assertion that equitable tolling
is warranted during this 10+ year period.
Moreover, assuming that
equitable tolling during petitioner’s federal custody is warranted,
petitioner offers no basis for any additional tolling after his
transfer to state custody on or about June 6, 2007.
Hence, at the
very latest, the limitation period was triggered upon his transfer
to state custody, and expired one year later on June 6, 2008.
Because petitioner did not file his federal habeas petition until
June, 2010, the petition is untimely under 28 U.S.C. § 2244(d)(1).1
In so holding, I note that petitioner fails to demonstrate how
many months he was in “medical quarantine” or how that prevented
him from timely seeking federal habeas relief.
In any event,
because the record demonstrates that petitioner was able to file
1
In so holding, I note that petitioner filed a federal
habeas corpus proceeding on or about August 18, 2009. The
Honorable Ann Aiken dismissed the petition for lack of
exhaustion, and declined to hold the petition in abeyance pending
resolution of petitioner’s state court proceedings. Kessler v.
Belleque, 6:09-cv-990-AA, Order (#6). Even if that action had
been stayed, it ultimately would have been subject to dismissal
as untimely for the same reasons set forth above.
7 -- OPINION AND ORDER
multiple state proceedings in June and August, 2008, there is no
reasonable basis for concluding that his state custody rendered him
unable to file a federal habeas petition during that same time
period. See Ramirez, 571 F.3d at 998. Moreover, petitioner offers
no specific facts to support a conclusion that he acted diligently
in seeking federal habeas relief upon his return to state custody
in 2007.
For all of these reasons, I conclude that equitable
tolling is not warranted, and petitioner’s habeas corpus petition
is
untimely.
Petitioner’s
contention
that there
is
no
time
limitation in which to seek federal habeas relief as to a “void”
state court judgment lacks any legal support.
CONCLUSION
Based on the foregoing, petitioner's amended habeas corpus
petition (#10) is DENIED as untimely, and this proceeding is
DISMISSED, with prejudice.
Because petitioner has not made a
substantial showing of the denial of a constitutional right, a
certificate of appealability is DENIED.
See 28 U.S.C.
§ 2253(c)(2).
IT IS SO ORDERED.
DATED this
9th
day of November, 2011.
/s/ Garr M. King
Garr M. King
United States District Judge
8 -- OPINION AND ORDER
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