Moreno-Montano v. Jacquert et al

Filing 14

MEMORANDUM DECISION - the petition is DENIED because it is barred by the applicable period of limitation. Case closed. Signed by Judge Dale A. Kimball on 4/1/09. (jwt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION _________________________________________________________________ MARCOS MORENO-MONTANO, ) ) Petitioner, ) Case No. 2:06-CV-373 DAK ) v. ) District Judge Dale A. Kimball ) GREG JACQUERT et al., ) MEMORANDUM DECISION ) Respondents. ) Magistrate Judge Brooke Wells _________________________________________________________________ Petitioner, Marcos Moreno-Montano, an inmate at Central Utah Correctional Facility, requests habeas corpus relief.1 Because,

as the State asserts, Petitioner has filed his petition past the applicable period of limitation, the Court denies it. Petitioner was convicted of child rape and attempted aggravated sexual abuse, first-degree felonies, for which he is serving a ten-years-to-life sentence, concurrent with a term of three years to life. His conviction became final on December 16,

2002--the deadline he missed, after direct appeal in state court, for filing a petition for writ of certiorari with the United States Supreme Court. On that date, the one-year period of

limitation began running on Petitioner's right to bring a federal habeas petition. Because Petitioner did not file a state

petition for post-conviction relief during that year, the period of limitation ran out on December 16, 2003. Even so, Petitioner

waited until June 7, 2006, about two-and-one-half years later, to file his current petition.

1

See 28 U.S.C.S. § 2254 (2009).

By statute, the one-year period of limitation 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."2 Meanwhile, equitable

tolling is also available but "'only in rare and exceptional circumstances.'"3 Regarding statutory tolling, it is true that two state petitions for post-conviction relief were filed at different times. However, one was filed and dismissed during the directAnd, the other was filed after December 16, 2003, So, neither petition is relevant to the one was filed before the period

appeal period.

on June 22, 2005.

period-of-limitation analysis:

of limitation began running and the other filed after it had already run. "[A] state court petition . . . that is filed

following the expiration of the federal limitations period 'cannot toll that period because there is no period remaining to be tolled.'"4 Further, a federal habeas petition was pending in this Court from January 28, 2003, to August 25, 2003, when it was dismissed without prejudice for failure to exhaust. A footnote in this

2

Id. § 2244(d)(2).

S t a n l e y v. McKune, No. 05-3100, 2005 U.S. App. LEXIS 9872, at *4 (10th C i r . May 23, 2005) (quoting Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2 0 0 0 ) (citation omitted in original)). T i n k e r v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (quoting Webster v . Moore, 199 F.3d 1256, 1259 (11th Cir. 2000)); see also Fisher v. Gibson, 2 6 2 F.3d 1135, 1142-43 (10th Cir. 2001).
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Court's dismissal order specifically cautioned Petitioner of the possible effect of the one-year period of limitation on a future federal habeas petition.5 This Court further notes that the time

in which the first federal habeas petition was pending before this Court did not toll the running of the period of limitation.6 Regarding equitable tolling, Petitioner hints at no circumstances whatsoever that excuse his late filing. Accordingly, the current petition before the Court was filed past the one-year period of limitation. And, neither statutory

exceptions nor equitable tolling apply to save Petitioner from the period of limitation's operation. IT IS THEREFORE ORDERED that this petition is DENIED because it is barred by the applicable period of limitation. DATED this 1st day of April, 2009. BY THE COURT:

___________________________ DALE A. KIMBALL United States District Judge

5 M o r e n o - M o n t a n o v. Jacquert, No. 2:03-CV-106-DAK n.3 (D. Utah Aug. 25, 2 0 0 3 ) ("As a courtesy to Petitioner, the Court notes that it appears that P e t i t i o n e r has limited time remaining, according to state and federal statutes o f limitation, to return to state court to file a habeas petition, then, upon a state court decision, to revisit his claims in this Court. Upon receiving t h i s Order, if he wishes to continue to pursue his claims, Petitioner would be p r u d e n t to immediately file his petition in state court and at the conclusion o f those proceedings immediately file a petition in this Court.").

D u n c a n v. Walker, 533 U.S. 167, 181-82 (2001) (holding time during w h i c h federal habeas petition is pending does not toll period of limitation).

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