United States District Court, D. Oregon
OPINION AND ORDER
Aiken, United States District Judge.
brings this petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, alleging that his 300-month sentence
violated his rights against cruel and unusual punishment
under the Eighth Amendment. Respondent argues that the
petition is untimely, and petitioner's claim is barred by
the statute of limitations. I agree and dismiss the petition.
January 2010, after trial by jury, petitioner was convicted
of two counts of Unlawful Sexual Penetration in the First
Degree and six counts of Sexual Abuse in the First Degree.
Resp't Ex. 101. Petitioner's convictions arose from
the abuse of two girls who were friends of petitioner's
step-daughter. Ex. 102 at 11-16. The trial court imposed a
sentence of 300 months' imprisonment on Count 3, Unlawful
Penetration in the First Degree, and imposed concurrent
sentences on the remaining counts. Resp't Ex. 101.
appeal, petitioner asserted that the 300-month sentence on
Count 3 violated the Eighth Amendment's prohibition
against cruel and unusual punishment. Resp't Ex. 102 at
46-48. The Oregon Court of Appeals affirmed without opinion
and the Oregon Supreme Court denied review. Resp't Exs.
106-107. On August 7, 2013, the appellate judgment issued,
and petitioner's conviction became final on November 5,
2013, when the time for seeking review by the United States
Supreme Court expired. Gonzalez v. Thayer, 565 U.S.
134, 150 (2012).
30, 2014, petitioner signed a state court petition for
post-conviction relief (PCR) and alleged several claims of
ineffective assistance of counsel. Resp't Ex. 108.
Petitioner's appointed PCR counsel subsequently moved to
voluntarily dismiss his PCR petition, and the judgment of
dismissal was entered on October 14, 2015. Resp't Exs.
October 16, 2015, petitioner wrote his PCR counsel and
informed her that he had not given consent to dismiss his PCR
petition. Pet'r Ex. 1 (ECF No. 34-1). On November 2,
2015, PCR counsel unsuccessfully attempted to speak with
petitioner over the telephone, and on November 23, 2015, she
wrote petitioner a letter and disputed his assertion that he
had not agreed to dismiss his petition. Pet'r Ex. 2. PCR
counsel also informed petitioner that she would mail his
complete file as soon as petitioner obtained a "package
consent form" and mailing sheet from his correctional
institution. Pet'r Ex. 2. Counsel explained, "Due to
the size of the CD-ROM and the Discovery, you will need a
mailing sheet. Once I receive the mailing sheet for the
packages, I will send you the files as legal correspondence
in your name." Pet'r Ex. 2.
December 7, 2015 and February 10, 2016, petitioner again
wrote PCR counsel. He disputed the dismissal of his PCR
petition and asked about "the amount of documents that
will be sent and the CD-ROMs." Pet'r Ex. 3-4.
March 23, 2016, PCR counsel responded to petitioner and
recalled their conversations about the PCR petition and
explained her decisions. Counsel indicated that she had not
filed an appeal because the PCR petition was voluntarily
dismissed, and she reiterated her request for a packaging
slip to mail petitioner's 2, 600-page file. Pet'r Ex.
April 19, 2016, petitioner submitted a package authorization
form, which was mailed to PCR counsel on April 29, 2016. On
May 24, 2016, petitioner received his file from PCR counsel.
Resp't Ex. 121.
12, 2016, petitioner moved to allow an untimely appeal of the
dismissal of his PCR petition. Resp't Ex. 112. The motion
was denied by the Oregon Appellate Commissioner. Resp't
Ex. 113. Petitioner sought reconsideration, and the Oregon
Court of Appeals denied reconsideration and the Oregon
Supreme Court denied review. Resp't Ex. 114-19. On
January 18, 2017, the appellate judgment issued.
March 13, 2017, petitioner signed his federal petition for
writ of habeas corpus.
argues that the federal petition is untimely and barred from
review by the relevant one-year statute of limitations.
See 28 U.S.C. § 2244(d)(1)(A) (a petitioner
must file a federal habeas ...