United States District Court, D. Oregon
OPINION AND ORDER
Malcolm F. Marsh United States District Judge.
Sir James Williams, a prisoner in the custody of the Oregon
Department of Corrections, 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
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.
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.
April 12, 2012, Petitioner filed a state petition for
post-conviction relief (PCR), alleging claims of ineffective
assistance of counsel. 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.
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.
The One-Year Statute of Limitation
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)).
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
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