CRAIG M. KELLISON, Magistrate Judge.
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss (Doc. 14), and petitioner's opposition (labeled a traverse) (Doc. 15).
Petitioner is challenging his 2012
Petitioner filed three state post-conviction petitions for writ of habeas corpus, all in the Siskiyou County Superior Court. His first state habeas petition was filed on July 14, 2012, and denied August 21, 2012, his second was filed on August 30, 2012, and denied on October 10, 2012; and his third was filed on September 12, 2012, and denied on October 10, 2012.
II. MOTION TO DISMISS
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . . ." Rule 4 of the Rules Governing Section 2254 Cases. The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules.
Respondent brings this motion to dismiss
Federal habeas corpus petitions must be filed within one year from the later of: (1) the date the state court judgment became final; (2) the date on which an impediment to filing created by state action is removed; (3) the date on which a constitutional right is newly-recognized and made retroactive on collateral review; or (4) the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence.
Where a petition for review by the California Supreme Court is filed and no petition for certiorari is filed in the United States Supreme Court, the one-year limitations period begins running the day after expiration of the 90-day time within which to seek review by the United States Supreme Court.
There is no tolling for the interval of time between post-conviction applications where the petitioner is not moving to the next higher appellate level of review.
Here, petitioner is challenging his 2012 conviction. Petitioner appealed his conviction to the California Court of Appeal, which affirmed his conviction in April 2014. The California Supreme Court denied review on June 11, 2014. As no petition for certiorari was filed, the statute of limitations commenced after the 90 day period of time for filing a petition for writ of certiorari, or September 10, 2014. The statute of limitations expired one year later, on September 9, 2015. The petition filed in this action was signed on September 30, 2015, but was not received by the court to be filed until October 28, 2015. Giving petitioner the benefit of the mailbox rule, the effective filing date of his federal habeas petition is September 30, 2015.
As for statutory tolling, petitioner filed three state habeas petitions in 2012, all with the Siskiyou County Superior Court. However, these petitions were all filed prior to the commencement of the statute of limitations. While a properly filed habeas petition may otherwise have tolled the statute of limitations, as the state habeas petitions filed in this instance had no tolling effect on the statute of limitation as they were filed and denied prior to the commencement of the statute of limitations.
Petitioner argues his petition is timely as it was deemed filed the day he placed it in the prison official's hands, wherein they signed and dated on the envelope. He claims the date he gave it to prison officials for filing was September 2, 2015. However, as stated above, a review the petition filed with this court (Doc. 1) clearly shows the petition was signed and the proof of service completed on September 30, 2015. There was some delay in the court receiving the petition, as it was not filed in this court until October 28, 2015. However, the petition was signed September 30, 2015. There is nothing to indicate that petitioner submitted it prior to the date of signing, nor has he set forth any argument that for some reason he post-dated the petition, which would not be a plausible argument.
The undersigned finds the petitioner's federal habeas petition is untimely, as it was filed beyond the expiration of the statute of limitations.
Based on the foregoing, the undersigned recommends that respondent's motion to dismiss (Doc. 14) be granted and the petition be dismissed as filed beyond the statute of limitations.
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 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal.