Solis v. Hill, No. 1:2010cv00925 - Document 25 (D. Or. 2011)
Court Description: OPINION AND ORDER. The Petition for Writ of Habeas Corpus 2 is DISMISSED on the basis that it is untimely. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. Signed on 6/02/2011 by Judge Owen M. Panner. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION JUAN CARLOS SOLIS, Civil No. 10-92S-PA Petitioner, v. JEAN HILL, OPINION AND ORDER Respondent. Juan Carlos Snake River 777 Stanton Ontario, OR Solis, #13496424 Correctional Institution Blvd. 97914 Petitioner, Pro Se John R. Kroger, Attorney General Kristen E. Boyd, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER PANNER, District Judge. Peti tioner u. S. C. § 2254 brings this habeas corpus case pursuant to 28 challenging the legality of his underlying state convictions for Murder and Robbery. For the reasons that follow, the Petition for Writ of Habeas Corpus [2] is dismissed on the basis that it is untimely. BACKGROUND On August 25, 2004, petitioner was indicted on counts in the Umatilla County Circuit Court. 41 felony Petitioner entered into a plea deal where he pled guilty to one count of Felony Murder and four counts of Robbery in the First Degree, and the State agreed to drop the remaining charges and agreed not to pursue other criminal cases against him. Respondent's Exhibit 103. As a result, the trial court sentenced petitioner to life with a 25-year minimum sentences sentence for for each Felony charge of Murder, Robbery and in concurrent the First 90-month Degree. Respondent's Exhibit 101. Petitioner did not take a direct appeal, but filed for post conviction relief ("PCR") in Malheur County where the PCR trial court denied relief on all of his claims. 137. Respondent's Exhibit The Oregon Court of Appeals affirmed the lower court without opinion, and the Oregon Supreme Court denied review. Solis v. Nooth, 232 Or. App. 440, 220 P.3d 1140 (2009), rev. denied 347 Or. 608, 226 P.3d 43 (2010). 2 - OPINION AND ORDER Petitioner filed his Petition for Writ of Habeas Corpus on August 6, 2010, and he concedes that the Petition was not filed within the applicable limitations period. that he is limi tat ions entitled due to to his equitable He contends, however, tolling of the statute of confinement wi thin the Segregation Unit within his prison. DISCUSSION The Antiterrorism and Effective Death Penalty Act was enacted on April 24, 1996. ("AEDPA") AEDPA provides that a one-year statute of limitations applies to federal habeas corpus actions filed by state prisoners. The one-year period runs from the latest of: (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (8) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. 2244 (d) (1). The period of direct review also includes the 90-day period within which a petitioner 3 - OPINION AND ORDER can file a petition for writ of certiorari with the United States Supreme Court, whether or not he actually files such a petition. (9th Cir. 1999). Bowen v. Roe, 188 F.3d 1157, 1159 In addition, n[tJhe time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this sub sec t ion. n In 2 8 U. S . C. this case, as § 2 2 4 4 (d) (2) . alleged judgment issued on April 5,2006. Exhibit 101. in the Petition, the criminal Petition [2J, p. 1; Respondent's Under Oregon law, petitioner had 30 days in which to take a direct appeal. ORS 19.255(1). As petitioner did not take a direct appeal, AEDPA's statute of limitations began to run on May 5, 2006 when his time for appealing expired,l and it continued to run unabated until petitioner signed his PCR action on March 6, 2007. See Saffold v. Newland, 224 F.3d 1087, 1091 (9th Cir. 2000) (date of filing for pro se inmate is the date he signs his papers and hands them to prison authorities for mailing) . According to the court's calculation, 305 untolled days elapsed between the conclusion of petitioner's direct appeal and the filing of his PCR action. AEDPA's statute of limitations once again resumed when the PCR appellate judgment was issued on March The period of direct review in this case does not include the 90 days in which to file a petition for writ of certiorari where petitioner did not take a direct appeal in Oregon's state courts. See 28 U.S.C. § 1257 (limiting U.S. Supreme Court review to final judgments and decrees from the highest court of a state) . 4 - OPINION AND ORDER 25, 2010, and petitioner had until May 24, his Petition for Writ of Habeas 2010 in which to file Corpus. Peti tioner did however, sign and mail the Petition until July 27, 2010. [2], p. 15. not, Petition As a result, he breached AEDPA's one-year statute of limitations by 64 days, allowing a total of 429 untolled days to accrue prior to filing this action. Petitioner asks the court to equitably toll the statute of limitations due to his placement in his prison's Segregation Unit which, he claims, made it impossible for him to timely file his Petition. Equi table tolling is available to toll the one-year statute of limitations available to 28 U.S.C. cases. Holland litigant (1) seeking v. to Florida, invoke 130 S.Ct. equitable § 2254 habeas corpus 2549, 2560 tolling must (2010). A establish: that he has been pursuing his rights diligently and (2) that some extraordinary circumstance prevented him from timely filing his petition. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). A petitioner who fails to file a timely petition due to his own lack of diligence is not entitled to equitable tolling. Long, 253 F.3d 494, 504 (9th Cir. 2001). Tillema v. Petitioner bears the burden of showing that this "extraordinary exclusion" should apply to him. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). According to petitioner, he was placed in the Segregation Unit at his prison from May 5, 2010 until September 15, 2010. that the restraints attendant 5 - OPINION AND ORDER to such incarceration He claims made it impossible for him to timely file this case. While petitioner declares that he was housed in the Segregation Unit from May 5, 2010 until September 15, 2010, the Oregon Department of Corrections housing history database shows that he was not actually placed in the Segregation Unit until June 5, 2010, twelve days after AEDPA's statute of limitations had expired. Respondent's Exhibit 143. Because petitioner was not placed in the Segregation Unit until after AEDPA' s cannot show that statute of limitations had already run, such placement made timely file this case. equitable tolling. it impossible for he him to Accordingly, petitioner is not entitled to His Petition is therefore subject to dismissal on the basis that it is untimely. CONCLUSION The Petition for Writ of Habeas Corpus [2J is DISMISSED on the basis that it is untimely. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. DATED this 7/' day Owen M. Panner United States District Judge 6 - OPINION AND ORDER
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