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United States District Court

Eastern District of California 

Walter Maurice Savage,

Petitioner, No. Civ. S 04-1079 MCE PAN P

vs. Findings and Recommendations

State of California, et al.,

Respondent.

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

of habeas corpus. He challenges a 1994 murder conviction in

Sacramento County, for which he is serving a sentence of 25 years

to life. 

Petitioner’s conviction became final December 26, 1995, 90

days after the California Supreme Court denied his petition for

review on September 27, 2005.

Respondent has moved to dismiss the petition upon the ground

it was not filed within the limitation period provided by

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statute; petitioner opposes. 

A petition for habeas corpus challenging a state conviction

or sentence must be filed within one year from the date on which

the challenged judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review. 28

U.S.C. § 2244(d)(1)(A). This limitation period is tolled for the

period during which a “properly filed application” for postconviction or other collateral review is pending in state court. 

28 U.S.C. § 2244(d)(2). For petitioners whose convictions became

final prior to the enactment of the Anti-Terrorism and Effective

Death Penalty Act of 1996, the limitation period commenced

running April 25, 1996.

Petitioner filed his first collateral action in state court

July 5, 2002. He claims the limitation period was tolled from

April 25, 1996, until March 21, 2002. Petitioner submits

evidence that between December 1995 and March 2002 he wrote to

his appellate attorney repeatedly to learn the status of his case

but his inquiries were ignored. He did not learn the petition

for review was denied until the California Supreme Court

responded to his letter March 21, 2002. He then filed a full

round of habeas petitions in the California Courts, claiming his

right to effective assistance of appellate counsel was violated

because counsel failed to provide him with his transcripts or

inform him the petition for review was denied. 

As respondent points out, petitioner bears a heavy burden of

establishing he is entitled to equitable tolling based on the

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asserted misconduct of appellate counsel. See Pace v.

DiGuglielmo, U.S. , 125 S.Ct. 1807 (2005). The “threshold

to trigger equitable tolling is very high, lest the exceptions

swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th

Cir. 2002). To establish tolling based on delay in receiving

notice of the 1995 denial of his petition for review, petitioner

must show he diligently attempted to ascertain the status of the

state court’s order and the delay prevented the him from filing a

timely federal petition. Drew v. Dept. of Corrections, 297 F.3d

1278 (11th Cir. 2002). Petitioner waited seven years after he

knew his petition for review had been filed before writing to the

California Supreme Court to inquire about the status of the

matter. A reasonable person in petitioner’s position would have

concluded, long before seven years had passed, that no

information from appellate counsel was forthcoming. Once

petitioner did learn the petition for review was denied he did

not bring the substance of any constitutional claims before any

state court until nearly 10 months later in January 2003. See

respondent’s lodged document 7. The obligation to act diligently

“does not pertain solely to the filing of the federal habeas

petition, rather it is an obligation that exists during the

period appellant is exhausting state court remedies as well.” 

Lacava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005). Petitioner

has not established the diligence necessary to warrant equitable

tolling. His claims are time-barred.

Respondent also asserts the amended petition is not

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completely exhausted. This argument has merit. Petitioner

counters that his claims were presented to the California Supreme

Court in support of his ineffective assistance of appellate

counsel claim. The court has reviewed that petition (see

respondent’s lodged document 11) and it is clear that at least

one claim presented herein, prosecutorial misconduct (see amended

petition at 34-41) is unexhausted.

Accordingly, the court hereby recommends respondent’s June

17, 2005, motion to dismiss be granted and this action be

dismissed as untimely and as pleading claims that are

unexhausted. 

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 10 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: January 24, 2006. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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