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United States District Court

Eastern District of California

Eddie Dunbar,

Petitioner, No. Civ. S 04-1176 GEB PAN P

vs. Findings and Recommendations

A. K. Schribner, et al.,

Respondents.

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

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

dismiss upon the ground the petition is untimely. Petitioner

opposes.

March 3, 2000, petitioner was convicted in the Sacramento

County Superior Court. March 7, 2000, petitioner filed a

petition for a writ of habeas corpus in the trial court. March

31, 2000, that court denied relief. Petitioner appealed his

conviction. The appellate court affirmed March 18, 2002. April

Case 2:04-cv-01176-GEB-PAN Document 17 Filed 06/02/05 Page 1 of 5
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23, 2002, petitioner filed a petition for review in the

California Supreme Court. That court summarily denied review

June 12, 2002. 

November 7, 2002, petitioner filed in the trial court a

petition for a writ of habeas corpus challenging his conviction.

December 3, 2002, that court denied relief. April 7, 2003,

petitioner filed a habeas petition in the appellate court

claiming the trial court violated his rights by not ruling on his

November 7 petition. The court summarily denied relief April 24,

2003, sending petitioner a copy of the trial court’s December 3,

2002, order. August 25, 2003, petitioner filed an application

for a writ of habeas corpus in the appellate court claiming the

December 3, 2002, order the appellate court sent to him was not

authentic, the trial court intentionally refused to rule on his

petition in violation of due process, the trial court denied his

right to counsel at trial by refusing to grant petitioner’s

motion for substitute counsel and trial counsel was ineffective. 

September 18, 2003, that court summarily denied relief. October

23, 2003, petitioner filed in the California Supreme Court a

petition for review of the September 18, 2003, order denying

habeas relief. October 24, 2003, the court advised petitioner

that time for seeking review had passed but that he could file a

petition for a writ of habeas corpus and sent him a form

petition. January 12, 2004, petitioner filed a petition for a

writ of mandate in the California Supreme Court. January 28,

2004, the court summarily denied relief.

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June 21, 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

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). Petitioner’s conviction

became final September 10, 2002. See Bowen v. Roe, 188 F.3d 1157

(9th Cir. 1999) (judgment on direct review becomes final when the

90 day limit for filing a petition for certiorari expires). 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 time between a lower court decision and filing a new petition

in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). 

Absent tolling, petitioner had until September 10, 2003, to

file his federal petition and his June 21, 2004, application is

over nine months late.

Petitioner’s March 7, 2000, petition in the trial court is

not a basis for tolling because the limitation period had not

begun.

Petitioner is entitled to tolling for 26 days, from November

7, 2002, when he filed a habeas petition in the trial court until

December 3, 2002, when the trial court denied relief. 

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The April 7, 2003, petition in the appellate court is not a

basis for statutory tolling because it does not challenge the

conviction. Tillema v. Long, 253 F.3d 494 (9th Cir. 2001). 

Petitioner is entitled to 24 days’ tolling from August 25,

2003, until September 28, 2003.

The October 23, 2003, petition for review in the California

Supreme Court is not a basis for tolling because the court

returned it unfiled for lack of jurisdiction and so the petition

was not “properly filed.” Artuz v. Bennet, 531 U.S. 4, 8 (2000)

(“application is ‘properly filed’ when its delivery and

acceptance are in compliance with the applicable laws and rules

governing filings.”).

Affording petitioner 50 days’ statutory tolling, he had

until October 30, 2002, to file his federal petition.

Petitioner contends he is entitled to equitable tolling from

December 3, 2002, until April 24, 2003, because the trial court

did not send him its order denying relief. If petitioner were

entitled to equitable tolling, he would have had until March 21,

2003, to file his federal petition and the June 21, 2004,

petition would be late. The court therefore declines to

determine whether petitioner has satisfied his burden of showing

facts entitling him to equitable tolling. Miranda v. Castro, 292

F.3d 1063, 1065 (9th Cir. 2002).

For these reasons, I recommend that respondents’ October 7,

2004, motion to dismiss be granted and that petitioner’s motions

for summary judgment be denied and that this action be dismissed.

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5

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. Within 20 days after being

served with these findings and recommendations, petitioner may

file written objections. 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 2, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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