United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

GRAYLING LACEY,

Petitioner,

v.

BEN CURRY, 

Respondent. /

No. C 09-1004 SI (PR)

ORDER GRANTING RESPONDENT’S

MOTION TO DISMISS

INTRODUCTION

This is a federal habeas corpus action filed by a pro se state prisoner pursuant to 28

U.S.C. § 2254. Respondent moves to dismiss the petition on grounds of untimeliness. (See

Docket No. 6.) For the reasons set forth below, respondent’s motion is GRANTED and the

petition DISMISSED. 

BACKGROUND

On August 15, 2006, the Board of Parole Hearings (“Board”) found petitioner unsuitable

for parole, and that decision became final on December 13, 2007. In response to the Board’s

decision, petitioner sought, though was denied, relief on collateral state review. This federal

habeas petition followed. Respondent moves to dismiss the petition as untimely in that it was

filed outside of AEDPA’s one year statute of limitations, specifically on February 19, 2009,

Case 3:09-cv-01004-SI Document 17 Filed 05/28/10 Page 1 of 5
United States District Court

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more than a year after the Board’s decision became final, and is therefore time-barred. (Resp’t’s

Mot. to Dismiss (“MTD”) at 1.) 

DISCUSSION

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies

to every federal habeas petition filed on or after April 24, 1996, contains a statute of limitations

codified at 28 U.S.C. § 2244(d). Federal habeas petitions must be filed within one year of the

latest of the date on which: (1) the judgment became final after the conclusion of direct review

or the time passed for seeking direct review; (2) an impediment to filing an application created

by unconstitutional state action was removed, if such action prevented petitioner from filing;

(3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly

recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the

factual predicate of the claim could have been discovered through the exercise of due diligence.

See 28 U.S.C. § 2244(d)(1). “[W]hen a petitioner fails to seek a writ of certiorari from the

United States Supreme Court, the AEDPA’s one-year limitations period begins to run on the date

the ninety-day period defined by Supreme Court Rule 13 expires.” Bowen v. Roe, 188 F.3d

1157, 1159 (9th Cir. 1999). 

B. Timeliness of the Petition

The following facts are undisputed. The Board found petitioner unsuitable for parole on

August 15, 2006. Respondent concedes that the decision became final on December 13, 2006.

(See MTD at 2; Pet., Ex. D at 47.) Petitioner, then, had until December 14, 2007 to file a timely

federal habeas petition. Petitioner filed the instant petition on February 19, 2009. On this

record, absent tolling, the petition is barred by AEDPA’s statute of limitations, § 2244(d),

because petitioner did not file by the December 14, 2007 deadline. 

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United States District Court

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C. Statutory and Equitable Tolling 

1. Statutory Tolling

Petitioner is entitled to equitable tolling of the statute of limitations during the time he

pursued his state remedies. The relevant facts are as follows. The Board’s decision became final

on December 13, 2006. 225 days later, petitioner filed his first state habeas petition on July 15,

2007, in the state superior court. After the state superior court and then the state appellate court

denied his habeas petitions, petitioner filed a petition in the California Supreme Court, which

denied his petition on June 18, 2008. 246 days later, on February 19, 2009, petitioner filed the

instant federal habeas petition. The total delay in filing in this Court was 471 days, which is the

sum of the 225 day delay between the parole decision and the filing of the first state habeas

petition, and the 246 day delay between the issuance of the California Supreme Court’s decision

and the filing of the instant federal habeas petition. 

 For purposes of statutory tolling, the time during which a properly filed application for

state post-conviction or other collateral review is pending is excluded from the one-year

limitations period. See § 2244(d)(2). 

The petition is untimely, even with the application of statutory tolling. As discussed

above, the petition was filed, taking tolling into account, 471 days after the Board’s parole

decision, which is clearly beyond the one year AEDPA statute of limitations. 

Petitioner makes two arguments in his opposition to the motion to dismiss that warrant

discussion. First, he contends that under a state court rule, the California Supreme Court’s

decision did not become final until July 17, 2008, thirty days after that court issued its ruling.

(Petitioner’s Opp. to MTD (“Opp.”) at 4.) This contention is no longer supported by the relevant

state court rule. Effective January 1, 2003, the rule was amended to provide that an order

denying a petition for a writ of habeas corpus becomes final upon filing. See Cal. Rule of Court

8.532(b)(2)(C). Accordingly, the California Supreme Court’s decision was final on the date it

was filed, that is, June 18, 2008. 

Second, petitioner contends that he is entitled to equitable tolling for the ninety days after

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the California Supreme Court’s decision, during which time he could have filed for a petition

for a writ of certiorari to the U.S. Supreme Court. (Opp. at 9.) 

The one-year period of the statute of limitations generally will run from “the date on

which the judgment became final by conclusion of direct review or the expiration of the time for

seeking such review.” 28 U.S.C. § 2244(d)(1)(A). “Direct review” includes the period within

which a petitioner can file a 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 (9th Cir. 1999). Accordingly, if a petitioner fails to seek a writ of certiorari from the

United States Supreme Court, the AEDPA’s one-year limitations period begins to run on the date

the ninety-day period defined by Supreme Court Rule 13 expires. See Miranda v. Castro,

292 F.3d 1063, 1065 (9th Cir. 2002). The Ninth Circuit, however, has held that section

2244(d)(1)(A) applies only to a “judgment of conviction and sentence” and to the “direct

appellate review of that judgment,” not to administrative decisions such as the denial of parole.

Redd v. McGrath, 343 F.3d 1077, 1081–82 (9th Cir. 2003).

Petitioner’s contentions in favor of statutory and equitable tolling are unavailing.

Accordingly, respondent’s motion is GRANTED, and the petition DISMISSED as untimely. 

 

CONCLUSION

Respondent’s motion to dismiss the petition as untimely (Docket No. 6) is GRANTED.

The petition is hereby DISMISSED.

 A certificate of appealability will not issue. Petitioner has not shown “that jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

//

//

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 The Clerk shall enter judgment in favor of respondent, terminate the pending motion, and

close the file.

This order terminates Docket No. 6. 

IT IS SO ORDERED.

DATED: May 28, 2010 SUSAN ILLSTON

United States District Judge

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