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26 1 Rosanne Campbell, Warden of Mule Creek State Prison, is substituted

as respondent. See Rule 2(a), Rules Governing § 2254 Proceedings; Fed. R.

Civ. P. 25(d).

United States District Court

Eastern District of California

Carl Smith,

Petitioner No. Civ. S 04-0646 LKK PAN P

vs. Order

Rosanne Campbell, Warden,

Respondent.

-oOoPetitioner, a prisoner without counsel, seeks a writ of

habeas corpus. See 28 U.S.C. § 2254. Respondent1 moves to

dismiss upon the ground the petition is untimely. Petitioner

filed no opposition.

On May 24, 1996, petitioner, represented by counsel, entered

a plea of guilty to and was convicted of three counts of battery

with serious injury and one count of second degree murder. On

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June 20, 1996, petitioner was sentenced. He did not appeal.

On November 25, 1997, petitioner filed a petition for a writ

of habeas corpus in the Kern County Superior Court claiming trial

counsel was ineffective by permitting him to enter a plea of

guilty to second degree murder. On December 17, 1997, the court

denied relief on the merits.

On May 27, 1998, petitioner filed a second petition for a

writ of habeas corpus in the Kern County Superior Court claiming

he was not competent to proceed when he entered his plea of

guilty and counsel was ineffective by permitting petitioner to

enter the plea. On June 18, 1998, the court denied relief on the

merits.

June 12, 2001, petitioner filed a third petition for a writ

of habeas corpus in the Kern County Superior Court claiming trial

counsel falsely advised him the assistant state attorney promised

to recommend petitioner receive concurrent sentences in exchange

for a plea of guilty to second degree murder, failed to

investigate petitioner’s mental state before petitioner entered a

plea of guilty, and advised petitioner to enter a plea of guilty

because no judge or jury would believe petitioner’s defense. The

court denied relief July 3, 2001, upon the ground state law

prohibits petitioners from presenting their contentions

piecemeal. See In re Clark 5 Cal.4th 750 (1993).

On March 25, 2004, petitioner filed his federal petition.

A one-year limitation period for seeking federal habeas

relief begins to run from the latest of the date the judgment

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became final on direct review, the date on which a state-created

impediment to filing is removed, the date the United States

Supreme Court makes a new rule retroactively applicable to cases

on collateral review or the date on which the factual predicate

of a claim could have been discovered through the exercise of due

diligence. 28 U.S.C. § 2244(d)(1). A properly filed state post

conviction application tolls the statute of limitations. 28

U.S.C. § 2244(d)(2). 

For purposes of statutory tolling, a properly filed post

conviction application in a California court is “pending” during

the intervals between a lower court decision and filing a new

petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223

(2002). A California prisoner who files habeas petitions in any

state court is entitled to interval tolling for the time between

properly filed and pending petitions containing overlapping or

identical claims, at least some of which were litigated

continuously. Gaston v. Palmer, 417 F.3d 1030 (9th Cir. 2005). 

But a state habeas petition filed after the federal limitation

period expires cannot re-initiate the limitation period. 

Fergusun v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). 

Since petitioner did not appeal, his conviction became final

August 19, 1996, 60 days from the date judgment was entered. See

Cal. Rules of Court, Rule 31(a). Petitioner therefore had until

August 19, 1997, to file a federal habeas petition. Absent

tolling, petitioner’s March 25, 2004, federal petition is

untimely. 

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Petitioner’s three state habeas petitions provide no basis

for statutory tolling because they were filed after the

limitation period expired. 

Since petitioner filed no opposition, the question of

equitable tolling is not presented. See Miranda v. Castro, 292

F.3d 1063, 1065 (9th Cir. 2002) (petitioner not entitled to

equitable tolling where he failed to establish extraordinary

circumstances beyond his control prevented him from timely

filing). 

For these reasons, the court finds petitioner’s March 25,

2004, federal habeas petition is untimely.

This action is dismissed.

IT IS SO ORDERED.

DATED: September 22, 2005.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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