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Williams v. Doohan

United States District Court, D. Oregon

August 1, 2018

SIR JAMES WILLIAMS, Petitioner,
v.
KEVIN DOOHAN, Parole Officer, MICHAEL WU, Chairperson Oregon Board of Parole and Post-Prison Supervision, Respondents.

          OPINION AND ORDER

          Malcolm F. Marsh United States District Judge.

         Petitioner Sir James Williams, a prisoner in the custody of the Oregon Department of Corrections[1], brings this habeas corpus proceeding pursuant to 2 8 U.S.C. §2254. Am. Pet., ECF No. 5. For the reasons that follow, the court denies the petition because it is barred by the one-year statute of limitations in 28 U.S.C. § 2244(d)(1), and no basis exists for equitable tolling.

         BACKGROUND

         On April 15, 2009, a jury convicted Petitioner of one count of Rape in the First Degree and two counts of Sexual Assault in the First Degree. Resp't Ex. 101 at 3, ECF No. 16. On April 22, 2009, Petitioner was sentenced to a total of 100 months, to be followed by a period of post-prison supervision. Id. at 5.

         On July 29, 2009, Petitioner filed a direct appeal. Resp't Ex. 104 at 10. The Oregon Court of Appeals affirmed his conviction without opinion, the Oregon Supreme Court denied review, and the appellate judgment issued on November 23, 2011. Resp't Exs. 106, 107, 108.

         On April 12, 2012, Petitioner filed a state petition for post-conviction relief (PCR), alleging claims of ineffective assistance of counsel.[2] Resp't Ex. 111. The trial court denied post-conviction relief. Resp't Ex. 122. The Oregon Court of Appeals affirmed without opinion, the Oregon Supreme Court denied review, and the appellate judgment issued on March 10, 2016. Resp't Exs. 128, 129.

         On February 23, 2017, Petitioner filed his federal habeas petition, alleging one claim of ineffective assistance of counsel. Pet. Writ Habeas Corpus, ECF No. 1. On March 30, 2017, Petitioner filed an amended petition, asserting the same claim. Am. Pet. Writ Habeas Corpus, ECF No. 5. Respondent moves to deny the amended petition on the basis that it is time-bared under 28 U.S.C. § 2244(d)(1). Resp't Resp. Pet., ECF No. 14. Petitioner does not dispute that his petition is untimely. Instead, Petitioner asserts that he is entitled to equitable tolling of the limitation period and requests an evidentiary hearing to further develop those facts. Pet'r Br. at 5-7, ECF No. 28. Alternatively, Petitioner contends that dismissal of this proceeding on statute of limitations grounds would constitute an unreasonable suspension of the writ of habeas corpus.

         DISCUSSION

         I. The One-Year Statute of Limitation

         Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDP A"), a one-year period of limitation applies to a petition for writ of habeas corpus filed "by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). In this case, the limitation period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). For purposes of 28 U.S.C. §2244, the limitations period does not begin until expiration of the ninety-day "period within which a Petitioner can petition for a writ of certiorari from the United States Supreme Court, whether or not the Petitioner actually files such a petition." Bowen v. Roe, 188 F.3d 1157, 1159 (9thCir. 1999); see also Sossa v. Diaz, 729 F.3d 1225, 1227 (9th Cir. 2013). The limitation period is tolled during the time a properly filed state PCR petition is pending. 28 U.S.C. § 2244(d)(2). A PCR petition is "pending until it has achieved final resolution through the State's post-conviction procedure." Biggs v. Duncan, 339 F.3d 1045, 1047-48 (9th Cir. 2003) (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)) (internal quotations omitted). The statute of limitations is not tolled "from the time a final decision is issued on a direct state appeal [to] the time the first state collateral challenge is filed.'" Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (quoting Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (alteration in original)).

         In this proceeding, the appellate judgment on Petitioner's direct appeal of his conviction issued on November 23, 2011. Resp't Ex. 108. Thus, the limitation period began to run on February 21, 2012 (accounting for the ninety days allowed to file a certiorari petition). Between February 21, 2012 and April 12, 2012 (the date Petitioner signed his PCR petition), 50 days accrued. The PCR appellate judgment issued on March 10, 2016. At that time, 315 days remained on the limitation clock, and Petitioner could have filed a timely habeas petition on or before January 19, 2017. However, Petitioner did not file his habeas petition until February 23, 2017, which was 350 days after the PCR appellate judgment entered. Hence, Petitioner filed his habeas petition 35 days after the one-year period lapsed, and the petition is untimely.

         II. Equitable Tolling

         A. Standards

         The one-year limitations period may be equitably tolled upon a showing that (1) Petitioner pursued his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010); Fue v. Biter,842 F.3d 650, 653 (9th Cir. 2016); Luna v. Kernan,784 F.3d 640, 646 (9th Cir. 2015). Equitable tolling is a fact-specific inquiry. Holland, 560 U.S. at 650; Fue, 842 F.3d at 654; Gibbs v. Legrand,767 F.3d 879, 885 (9th Cir. 2014). The threshold necessary to trigger equitable tolling is very high, and is reserved for rare cases. Yeh v. Martel,751 F.3d 1075, 1077 (9th Cir. 2014); Spitsyn v. Moore,345 F.3d 796, 800 (9th Cir. 2003). A petitioner "bears a heavy burden to show that [he] is ...


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