Pirela v. Friel et al

Filing 45

MEMORANDUM DECISION denying 3 PETITION for Writ of Habeas Corpus ; finding as moot 20 Motion to Compel ; finding as moot 24 Motion for copies and status of case ; finding as moot 27 Motion to order transportation without petitioners cost ; fi nding as moot 28 Motion to order transportation without petitioners costs or fees ; finding as moot 31 Motion for Hearing ; finding as moot 32 Motion for immediate access to Courthouses law library and order to transport without my cause. Signed by Judge Ted Stewart on 09/23/2008. (asp)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION _________________________________________________________________ EDWIN MITCHELL PIRELA, ) ) Petitioner, ) Case No. 2:07-CV-208 TS ) v. ) District Judge Ted Stewart ) CLINT FRIEL et al., ) MEMORANDUM DECISION ) Respondents. ) Magistrate Judge Brooke Wells _________________________________________________________________ Petitioner, Edwin Mitchell Pirela, an inmate at Utah State Prison, 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 aggravated assault and aggravated sexual assault, crimes for which he is serving a fifteen-years-to-life sentence, concurrent with a term of up to five years and a consecutive enhancement of three years. His

conviction became final on September 25, 2003--the deadline he missed 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 September 25, 2004. Even so,

1

See 28 U.S.C.S. § 2254 (2008).

Petitioner waited until April 3, 2007, more than two-and-one-half years later, to file his current petition. 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 a state petition for post-conviction relief was filed on October 26, 2004. This petition was dismissed, then taken through the

appeals process, ending March 29, 2006, with the denial of Petitioner's petition for writ of certiorari in the Utah Supreme Court. However, that proceeding is irrelevant to this analysis

because it was not filed until after Petitioner's federal time limit had already expired. "[A] state court petition . . . that

is filed following the expiration of the federal limitations

2 3

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)).

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period 'cannot toll that period because there is no period remaining to be tolled.'"4 Regarding equitable tolling, Petitioner suggests no circumstances 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. further ORDERED that all pending motions and requests are MOOT and this case shall be closed forthwith. DATED this 23rd day of September, 2008. BY THE COURT: It is

___________________________ TED STEWART United States District Judge

Tinker 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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