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Robledo v. Ryan

United States District Court, Ninth Circuit

June 12, 2013

Paul Anthony Robledo, Petitioner,
v.
Charles L. Ryan; et al., Respondents.

ORDER

JAMES A. TEILBORG, District Judge.

Petitioner has moved pursuant to Rule 59 of the Federal Rules of Civil Procedure to alter or amend this Court's judgment dismissing his Petition for Writ of Habeas Corpus. Previously, this Court ruled that the Petition is barred by the statute of limitations. Doc. 37. Specifically, this Court reached this conclusion as follows:

II. Statute of Limitations

The AEDPA established a one-year statute of limitations for filing a federal habeas petition. R&R at 4. This statute of limitations begins to run when a petitioner's conviction becomes final in state court. Id. The Petition in this case was filed on June 14, 2012. The R&R concludes, after applying statutory tolling, that the Petition was due before February 8, 2012. R&R at 4-6. The R&R next concludes that Petitioner is not entitled to equitable tolling. R&R at 6-9. The R&R finally concludes that the Petition is barred by the statute of limitations. Petitioner objects to the conclusion that his Petition is untimely.
Petitioner argues he should receive tolling of the statute of limitations based on his time in "transitory housing." Specifically, Petitioner argues that he did not receive access to his legal materials while he was in transitory housing. Further, in his objections, Petitioner asserts that he was in transitory housing for "over one month." Doc. 34 at 4. The R&R states that Petitioner alleged that he was in transitory housing for three months - from January 2011 through March 2011. R&R at 8. Petitioner does not cite to any of his exhibits (Docs. 35, 33, and 32) for evidence of how long he was actually in transitory housing. For example, in Doc. 33 at 7, Petitioner attaches an inmate response letter in which he asked if Rincon 7 was transitory housing; the response from prison was that it is not transitory housing.

Using Petitioner's objections, Petitioner alleges that he was in transitory housing for over one month (Doc. 34 at 4), but he does not specify when this month was. Petitioner then alleges that this month of transitory housing is why his petition for review with the Arizona Court of Appeals was untimely. Id. Petitioner then concludes by alleging that his due date of his Petition was November 14, 2012. Id. at 4-5.

A. Statutory Tolling
Up to January 7, 2011, Petitioner had a properly filed action pending in state court; therefore his AEDPA statute of limitations was not running. R&R at 31. On January 7, 2011, the state trial court dismissed Petitioner's post-conviction relief petition. Petitioner had 30 days to appeal to the Arizona Court of Appeals, and he did not appeal within that time. R&R at 5-6; Doc. 21-1 at 167. Therefore, Petitioner's AEDPA statute of limitations began to run on February 8, 2011, when Petitioner's time to appeal expired. R&R at 5-6. Thus, Petitioner's petition had to be filed by February 7, 2012.
As stated above, the R&R recounts that Petitioner alleges that he was in transitory housing from January 2011 to March 2011.[1] Petitioner then goes on to allege that he did not have access to his legal materials while he was in transitory housing.[2] Thus, Petitioner concludes that his stay in transitory housing is why he did not timely file his appeal of the denial of his request for post-conviction relief with the Arizona Court of Appeals.
As discussed above, the state trial court denied Petitioner's require for post-conviction relief on January 7, 2011. Doc. 21-1 at 167. Petitioner's appeal was due to the Arizona Court of Appeals by February 7, 2011. Id. Petitioner did not file his petition for review with the Arizona Court of Appeals until August 3, 2011. Id. The Arizona Court of Appeals denied the petition as untimely on November 14, 2011. Id. Petitioner suggests in his objections that the due date for his federal habeas Petition should be November 14, 2012. Doc. 34 at 4-5. Thus, Petitioner appears to be arguing that he thinks his statute of limitations should be one year from when the Arizona Court of Appeals dismissed his untimely petition for review.
For statutory tolling to be available to Petitioner, the request for relief pending in state court must be properly filed. See 28 U.S.C. ยง 2244(d)(2). A request is not properly filed if it is untimely. Allen v. Siebert, 552 U.S. 3, 6 (2007) (holding "that time limits, no matter their form, are filing' conditions, " and that a state post-conviction petition is therefore not "properly filed" if it was rejected by the state court as untimely.).
This case presents a good example of why this rule is in place. Specifically, Petitioner's petition for review with the Arizona Court of Appeals was six months late. Petitioner cannot give himself a six month extension of his federal habeas statute of limitations (or, hypothetically, an even longer extension), by deciding to file a petition for review.[3] Therefore, Petitioner is not entitled to statutory tolling for any period after his time to appeal the state court's denial of his post-conviction relief petition expired.
B. Equitable tolling
Next, Petitioner argues he should receive equitable tolling for while he was in transitory housing because that is why his petition for review to the Arizona Court of Appeals was untimely. Doc. 34 at 3-5. To the extent Petitioner is arguing that the state court's deadline should have been extended, this Court has no power over the state court in its imposition of its own deadlines. Next, to the extent ...

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