United States District Court, D. Oregon
MICHELLE M. SWEET, Assistant Federal Public Defender, Portland, OR, Attorney for Petitioner.
ELLEN F. ROSENBLUM, Attorney General, NICK M. KALLSTROM, Assistant Attorney General Department of Justice, Salem, OR, Attorneys for Respondent.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court DENIES Petitioner's Amended Petition for Writ of Habeas Corpus (#29).
On November 2, 2005, a Baker County grand jury indicted Petitioner on one charge of Sexual Abuse in the First Degree. Resp. Exh. 102. The cased was tried to a jury, and on March 16, 2006, the jury found Petitioner guilty as charged. Resp. Exh. 110.
Petitioner filed a direct appeal, but moved to voluntarily dismiss the appeal before the Oregon Court of Appeals ruled on any appellate claims. Resp. Exh. 103. The Oregon Court of Appeals granted Petitioner's motion on February 5, 2007. Resp. Exh. 103.
On January 21, 2009, Petitioner signed a petition for state post-conviction relief ("PCR"). Resp. Exh. 104. Following an evidentiary hearing, the PCR trial court denied relief. Resp. Exh. 117. Petitioner appealed, but the Oregon Court of Appeals summarily affirmed and the Oregon Supreme Court denied review. Resp. Exh. 125. The appellate judgment in the PCR proceeding issued on June 5, 2013. Resp. Exh. 125.
On October 10, 2013, Petitioner signed a pro se Petition for Writ of Habeas Corpus, which was filed in this Court on October 13, 2013. The Court appointed counsel to represent Petitioner, and on July 25, 2014, counsel filed an Amended Petition for Writ of Habeas Corpus on Petitioner's behalf.
Respondent argues that both the original and amended petitions were not timely filed under 28 U.S.C. § 2244(d). Petitioner does not dispute that his initial habeas petition was untimely, but argues his failure to file within the § 2244(d) limitation period should be excused because he is actually innocent.
The parties do not dispute that petitioner did not timely file his federal habeas petition, and they are correct. The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides for a one year statute of limitations to file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Under the statute, the one year period begins to run from the date the judgment becomes final at the conclusion of direct review "or the expiration of the time for seeking such review." Id. § 2244(d) (1)(A).
The limitations period is tolled during the pendency of a properly filed state post-conviction proceeding or other collateral review. 28 U.S.C. § 2244(d)(2); Lee v. Lampert, 610 F.3d 1125, 1127 (9th Cir. 2010). However, time elapsed after the direct appeal is final and before state PCR filing, as well as time after final collateral disposition and before federal filing counts against the year. 28 U.S.C. § 2244(d) (2); Nino v. Galaza, 183 F.3d 1003, 1006-07 (9th Cir. 1999).
Here, between the date on which direct review concluded and the date Petitioner signed the state PCR petition, 716 days accrued. Then, between the date on which the appellate judgment issued in the PCR proceeding and the date Petitioner signed his federal habeas petition, an addition 127 days accrued. In sum, Petitioner waited 843 days before seeking federal habeas relief, far exceeding the 356 ...