1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 Respondent requests the court correct the spelling of her name from

“Roxanne,” to “Roseanne.” The request is granted.

United States District Court

Eastern District of California

Geoffrey Jones,

Petitioner, No. Civ. S 04-2424 DFL PAN P

vs. Findings and Recommendations

Roseanne Campbell, Warden,

Respondents.

-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

opposes.

Petitioner was convicted March 8, 2001.

Petitioner appealed and the appellate court affirmed May 16,

2002.

Petitioner filed a petition for review in the California

Case 2:04-cv-02424-DFL -PAN Document 9 Filed 01/06/06 Page 1 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

Supreme Court. That court denied review July 24, 2002.

June 18, 2003, petitioner filed an application for a writ of

habeas corpus in this court. June 22, 2004, this court dismissed

the application upon the ground petitioner failed to exhaust

available state remedies.

December 12, 2003, petitioner filed an application for a

writ of habeas corpus in the California Supreme Court. September

22, 2004, that court denied the writ.

November 12, 2004, petitioner filed a new federal habeas

petition. In an order signed January 7 and filed January 11,

2005, I directed respondent to file and serve a response to the

petition within 60 days of that order. March 14, 2005,

respondent filed and served the motion to dismiss. Measuring

from the date the Clerk of the Court filed my order, respondent’s

motion is timely. See Johnson v. Mammoth Recreations, Inc., 975

F.2d 604, 606 (9th Cir. 1992)(measuring time for joining

additional parties from date scheduling order was filed).

I therefore consider the merits of respondent’s motion. 

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). The judgment on direct

Case 2:04-cv-02424-DFL -PAN Document 9 Filed 01/06/06 Page 2 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

review became final October 22, 2002, when the 90-day limit for

filing a petition for certiorari expires. Bowen v. Roe, 188 F.3d

1157 (9th Cir. 1999). 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 decision and filing a new petition in a higher court. 

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

Petitioner had until October 22, 2003, to file in federal

court. Absent tolling, petitioner’s November 12, 2004, petition

is late.

Petitioner is not entitled for tolling for the time his

unexhausted habeas petition was pending in this court. Duncan v.

Walker, 531 U.S. 991 (2001). Nor is petitioner entitled to

tolling for the time his December 12, 2003, petition was pending

in the California Supreme Court because it was filed after the

federal limitation period expired. See Fergusun v. Palmateer,

321 F.3d 820, 823 (9th Cir. 2003) (section 2244(d) does not

permit re-initiation of the limitation period when it expires

before a timely state petition for post-conviction relief was

filed).

Petitioner does not assert he is entitled to equitable

tolling.

For these reasons, respondent’s March 14, 2005, motion

should be granted and this action should be dismissed as

untimely.

Case 2:04-cv-02424-DFL -PAN Document 9 Filed 01/06/06 Page 3 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

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: January 5, 2006. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

Case 2:04-cv-02424-DFL -PAN Document 9 Filed 01/06/06 Page 4 of 4