(HC) Killebrew v. MacDonald, No. 1:2018cv00886 - Document 15 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to Grant Respondent's 12 Motion to Dismiss and Dismiss Petition for Writ of Habeas Corpus signed by Magistrate Judge Stanley A. Boone on 10/16/2018. Referred to Judge Drozd; Objections to F&R due by 11/19/2018.(Flores, E)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 LLOYD KILLEBREW, 11 Case No. 1:18-cv-00886-DAD-SAB-HC Petitioner, 12 FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS v. 13 KELLY SANTORO,1 14 ORDER DIRECTING CLERK OF COURT TO AMEND CAPTION Respondent. 15 (ECF No. 12) 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 19 pursuant to 28 U.S.C. § 2254. 20 I. 21 BACKGROUND On February 8, 2013, Petitioner was convicted by a jury in Kern County Superior Court 22 23 of inflicting corporal injury, using force of violence to inflict serious bodily injury, felony threat 24 of death or great bodily harm, and dissuading a witness by force or threat. Petitioner was 2 25 sentenced to an imprisonment term of twenty-five years. (LD 1). On May 7, 2014, the 26 1 Kelly Santoro is the current Warden of North Kern State Prison, where Petitioner is currently housed. (ECF No. 12 27 at 1 n.1). Accordingly, Kelly Santoro is substituted as Respondent in this matter. See Ortiz-Sandoval v. Gomez, 81 28 F.3d 891, 894 (9th Cir. 1996). 2 “LD” refers to the documents electronically filed by Respondent on September 6, 2018. (ECF No. 13). 1 1 California Court of Appeal, Fifth Appellate District affirmed the judgment. (LD 2). On July 16, 2 2014, the California Supreme Court denied the petition for review. (LDs 3, 4). Thereafter, 3 Petitioner filed seven state post-conviction collateral challenges, which were all denied. (LDs 5– 4 18). On June 27, 2018,3 Petitioner constructively filed the instant federal petition for writ of 5 6 habeas corpus. (ECF No. 1). On August 30, 2018, Respondent filed a motion to dismiss the 7 petition as untimely. (ECF No. 12). Petitioner filed an opposition to the motion to dismiss. (ECF 8 No. 14). 9 II. 10 DISCUSSION 11 A. Statute of Limitations 12 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 13 of 1996 (“AEDPA”). AEDPA imposes various requirements on all petitions for writ of habeas 14 corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. 15 Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the 16 enactment of AEDPA and is therefore governed by its provisions. AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal 17 18 petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Section 2244(d) provides: 19 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – 20 21 (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; 22 23 (B) 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; 24 25 26 27 28 Pursuant to the mailbox rule, a pro se prisoner’s habeas petition is filed “at the time . . . [it is] delivered . . . to the prison authorities for forwarding to the court clerk.” Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014) (alteration in original) (internal quotation marks omitted) (quoting Houston v. Lack, 487 U.S. 266, 276 (1988). The mailbox rule applies to both federal and state habeas petitions. Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 2010). Respondent applies the mailbox rule in the motion to dismiss. (ECF No. 12 at 2 n.2). 3 2 (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 1 2 3 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 4 5 (2) The 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 subsection. 6 7 8 28 U.S.C. § 2244(d). 9 In most cases, the limitation period begins running on the date that the petitioner’s direct 10 review became final or the expiration of the time for seeking such review. Here, the judgment 11 became final on October 14, 2014, when the ninety-day period to file a petition for writ of 12 certiorari in the United States Supreme Court expired. See Bowen v. Roe, 188 F.3d 1157, 1159 13 (9th Cir. 1999). The one-year limitation period commenced running the following day, October 14 15, 2014, and absent tolling, was set to expire on October 14, 2015. See Patterson v. Stewart, 251 15 F.3d 1243, 1246 (9th Cir. 2001) (citing Fed. R. Civ. P. 6(a)). 16 B. Statutory Tolling 17 The “time during which a properly filed application for State post-conviction or other 18 collateral review with respect to the pertinent judgment or claim is pending shall not be counted 19 toward” the one-year limitation period. 28 U.S.C. § 2244(d)(2). In the instant case, the limitation 20 period expired before Petitioner filed his first state habeas petition on July 19, 2016, and 21 § 2244(d) “does not permit the reinitiation of the limitations period that has ended before the 22 state petition was filed.” Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Accordingly, 23 the instant federal petition is untimely unless Petitioner establishes that equitable tolling is 24 warranted. 25 C. Equitable Tolling 26 The limitations period also is subject to equitable tolling if the petitioner demonstrates 27 “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 28 circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 3 1 649 (2010) (quoting Pace, 544 U.S. at 418). Petitioner bears the burden of alleging facts that 2 would give rise to tolling. Holland, 560 U.S. at 649; Pace, 544 U.S. at 418. However, Petitioner 3 has not made any showing that he is entitled to equitable tolling. Therefore, the instant federal 4 petition was not timely filed, and dismissal is warranted on this ground. 5 III. 6 RECOMMENDATION 7 Accordingly, IT IS HEREBY RECOMMENDED that: 8 1. Respondent’s motion to dismiss (ECF No. 12) be GRANTED; and 9 2. The petition for writ of habeas corpus be DISMISSED as untimely. This Findings and Recommendation is submitted to the assigned United States District 10 11 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 12 Rules of Practice for the United States District Court, Eastern District of California. Within 13 THIRTY (30) days after service of the Findings and Recommendation, any party may file 14 written objections with the court and serve a copy on all parties. Such a document should be 15 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 16 objections shall be served and filed within fourteen (14) days after service of the objections. The 17 assigned United States District Court Judge will then review the Magistrate Judge’s ruling 18 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 19 the specified time may waive the right to appeal the District Court’s order. Wilkerson v. 20 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 21 Cir. 1991)). 22 23 IT IS SO ORDERED. 24 Dated: October 16, 2018 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.