FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Petitioner is a state prisoner, proceeding without counsel. Respondent moves to dismiss this action as barred by the statute of limitations. Petitioner filed an opposition
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ."
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted. Section 2244(d)(1) of Title 8 of the United States Code provides:
28 U.S.C. § 2244(d)(1).
Section 2244(d)(2) provides that "the 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" the limitations period. 28 U.S.C. § 2244(d)(2). Generally, this means that the statute of limitations is tolled during the time after a state habeas petition has been filed, but before a decision has been rendered.
For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:
1. In 1996, petitioner pled guilty to assault with a firearm upon a peace officer, second degree robbery, and five counts of taking a hostage, and admitted the firearm use enhancement as to each count. (Respondent's Lodged Document ("LD") 1-2.) In 1997, in exchange for his guilty plea, petitioner was sentenced to 33 years and four months. (LD 2.)
2. Petitioner filed an appeal. On January 29, 1999, the California Court of Appeal for the Third Appellate District dismissed petitioner's appeal because he failed to obtain a certificate of probable cause. (LD 2.) Petitioner filed a petition for rehearing. (LD 2.) On February 26, 1999, the petition for rehearing was denied, but the opinion was modified to include the following footnote:
(LD 2.) Nevertheless, there was no change in the judgment. (LD 2 at 2.)
3. On March 8, 1999, petitioner filed a petition for review in the California Supreme Court. (LD 4.) The California Supreme Court denied the petition on April 14, 1999. (LD 5.)
4. On September 2, 2015,
5. On November 16, 2015, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (LD 8.) On December 30, 2015, the appellate court denied the petition without comment. (LD 9.)
6. On January 8, 2016, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 10.) On October 14, 2015, the California Supreme Court denied the petition. (LD 11.) 7. On June 24, 2016, petitioner constructively filed the instant federal petition.
Under 28 § 2244(d)(1)(A), the limitations period begins running on the date that petitioner's direct review became final or the date of the expiration of the time for seeking such review.
On April 14, 1999, the California Supreme Court summarily denied petitioner's petition for review on direct appeal. Petitioner then had ninety days, or until July 13, 1999, to file a petition for writ of certiorari with the U.S. Supreme Court.
The statute of limitations period expired on July 14, 2000. Petitioner did not file any state court petition prior to the expiration of the limitations period. Rather, all of petitioner's habeas petitions filed in state court were filed after the limitations period expired. State habeas petitions filed after the one-year statute of limitations has expired cannot revive the statute of limitations and have no tolling effect.
Petitioner did not file his federal petition until June 24, 2016, over fifteen years and eleven months after the limitations period expired. Thus, petitioner failed to file his federal petition within the one year statute of limitations period.
Petitioner argues that he filed his federal petition immediately after he received the order from the California Supreme Court, and contends that the span of time between the filing of his state court petitions was not unreasonable. However, as set forth above, petitioner's state court petitions were filed long after the federal statute of limitations period expired in 2000. Thus, petitioner's state court petitions were untimely and cannot serve to toll the limitations period.
"Equitable tolling may be available `[w]hen external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim.'"
"The threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule."
Petitioner argues that he was diligent in pursuing his state court petitions and that "the issues raised in the habeas petition involve an illegal sentence and the miscarriage of justice." (ECF No. 20 at 3.) However, petitioner fails to demonstrate that extraordinary circumstances beyond his control prevented him from timely filing his federal petition, and that he was diligent from July 14, 1999, when the limitations period began, and July 14, 2000, when the limitations period expired. Petitioner's diligence in 2015 and 2016 does not provide equitable tolling for the limitations period which has already expired. Petitioner fails to allege facts suggesting he is entitled to equitable tolling for the almost sixteen year delay in filing the instant petition. Accordingly, the undersigned finds that petitioner has not met his burden of demonstrating the existence of grounds for equitable tolling.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent's motion to dismiss (ECF No. 13) be granted; and
2. This action be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.