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United States District Court

Eastern District of California 

Gary Dean Heglin,

Petitioner, No. Civ. S 04-0770 DFL PAN P

vs. Findings and Recommendations

D.L. Runnels, Warden,

Respondent.

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

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

dismiss upon the grounds the action is untimely and petitioner

failed to exhaust available state remedies.

October 18, 2002, petitioner pleaded guilty in Placer County

Superior Court to possessing chemicals with intent to manufacture

methamphetamine. See Cal. Health & Safety Code § 11383. 

November 8, 2002, the court sentenced him to imprisonment and

January 17, 2003, amended the sentence. Petitioner did not

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appeal or seek habeas corpus relief in state court.

April 19, 2004, petitioner filed a petition for a writ of

habeas corpus in this court. 

A one-year limitation period for seeking federal habeas

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

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). With limited exceptions not

applicable here, a California defendant who enters a plea of

guilty must request the trial court to find probable cause to

appeal and if he does not his conviction is final 60 days after

the trial court enters judgment. Cal. Pen. Code § 1237.5; Rule

31(d), California Rules of Court. Petitioner’s conviction became

final March 17, 2003. A properly filed state post conviction

application tolls the statute of limitations. 28 U.S.C. 

§ 2244(d)(2). In California, a properly filed post conviction

application is “pending” during the intervals between a lower

court’s decision and filing a new petition in a higher court. 

Carey v. Saffold, 536 U.S. 214, 223 (2002). 

Accordingly, absent tolling petitioner had until March 16,

2004, to file a federal petition. Since petitioner did not file

any post conviction motions, he does not benefit from statutory

tolling. Petitioner makes no claim to equitable tolling. See

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Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002)

(petitioner has the burden of showing he es entitled to equitable

tolling).

Petitioner’s April 19, 2004, application for habeas corpus

relief is untimely.

For these reasons, respondent’s September 22, 2004, motion

to dismiss should be granted.

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be

filed within 20 days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

recommendations in whole or in part.

Dated: June 7, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

Case 2:04-cv-00770-DFL-PAN Document 6 Filed 06/08/05 Page 3 of 3