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

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

TERRY MONTGOMERY,

Petitioner, No. CIV S-04-2116 FCD DAD P

vs.

W.A. DUNCAN, et al.,

Respondents. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prisoner proceeding pro se with a second amended petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondents’ motion to

dismiss the petition as untimely. Petitioner filed an opposition to the motion and both parties

have filed replies. 

PROCEDURAL HISTORY

The record reflects the following chronology:

1. On December 14, 1999, petitioner was convicted in the Solano County

Superior Court of attempted murder, assault with a semiautomatic firearm, and possession of a

firearm by a felon. (Mot. to Dismiss (MTD) at 2; Ex. 9 at 2.) Petitioner was sentenced to a term

of thirty years to life in state prison. (Id. at 2.)

/////

Case 2:04-cv-02116-FCD-DAD Document 21 Filed 01/26/06 Page 1 of 7
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

2. On August 15, 2001, the California Supreme Court denied petitioner’s petition

for review. (Id.)

3. The record reflects that petitioner’s judgment became final on November 13,

2001, upon expiration of the ninety-day period during which petitioner could have filed a petition

for writ of certiorari with the United States Supreme Court after the California Supreme Court

denied review on appeal on August 15, 2001. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th

Cir. 1999). 

4. On December 27, 2001, petitioner filed a habeas petition with the California

Court of Appeal for the First Appellate District. On January 7, 2002, the petition was denied. 

(MTD, Ex. 3.) The docket report submitted by respondent indicates that in denying the petition

the state appellate court noted that “[p]etitioner should first seek relief, if any, in the trial court.” 

(Id.)

5. On January 18, 2002, petitioner filed a habeas petition with the Solano County

Superior Court, claiming ineffective assistance of trial and appellate counsel and jury instruction

error with respect to the weapon enhancement finding. (MTD, Ex. 4.) On February 28, 2002,

that petition was denied. (Id., Ex. 5.) In its order the Superior Court stated that while the

ineffective assistance of appellate counsel claim was cognizable in a habeas proceeding, the

habeas petition should have been brought in the Court of Appeal. (Id.)

6. On March 28, 2002, petitioner filed a second habeas petition with the Solano

County Superior Court, claiming violation of his right to cross-examine adverse witnesses, juror

misconduct and jury instruction error on the attempted murder charge. (Id., Ex. 6.) On May 21,

2002, the petition was denied in an order stating that “[p]etitioner’s claims could have been

addressed through his appeal, but were not, and as a result are not cognizable on a Petition for

Writ of Habeas Corpus.” (Id., Ex. 7.)

7. On October 1, 2002, petitioner filed his habeas petition with the California

Supreme Court. (Id., Ex. 8.) The petition, dated September 26, 2002, presented the following

Case 2:04-cv-02116-FCD-DAD Document 21 Filed 01/26/06 Page 2 of 7
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

claims: violation of petitioner’s right to cross-examine adverse witnesses, juror misconduct and

jury instruction error on the attempted murder charge. (Id.) On October 1, 2002, petitioner also

filed a second habeas petition which he labeled as “Supplemental.” (Id., Ex. 9.) This

supplemental petition is essentially a copy of the first habeas petition he filed with the Solano

County Superior Court on January 18, 2002, claiming ineffective assistance of trial and appellate

counsel and jury instruction error on the weapon enhancement allegation. (See id., Ex. 4.) On

March 19, 2003, the California Supreme Court summarily denied the habeas petition. (Id., Ex.

10.)

8. On October 6, 2003, petitioner filed his habeas petition in the U.S. District

Court for the Northern District of California. (Id., Ex. 11.) The petition is dated October 1,

2003. (See Court document number 1, Habeas Petition, at 9.) 

9. Almost one year later, on September 28, 2004, the case was transferred to the

U.S. District Court for the Eastern District of California, Fresno Division. On October 7, 2004,

the case was transferred to the Sacramento Division of that court.

ANALYSIS

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

one-year period of limitation applies to a petition for writ of habeas corpus filed in federal court

by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). The

period of limitation applies to all federal habeas petitions filed after the statute was enacted. 

Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Because this action was commenced in 2003,

the AEDPA period of limitation is applicable to the petition.

The statute of limitations begins to run when the petitioner’s criminal judgment

becomes final. However, under 28 U.S.C. § 2244(d)(2), the time during which a properly filed

habeas petition is pending before a state court, is not counted towards the one-year limitation

period. The period between the denial of a state petition and the timely filing of a subsequent 

/////

Case 2:04-cv-02116-FCD-DAD Document 21 Filed 01/26/06 Page 3 of 7
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

 Respondents acknowledge that petitioner is entitled to 10 days of statutory tolling with

respect to the first petition, 41 days during the pendency of his second petition, and 356 days for

the period beginning with the filing of his third petition until the date upon which his fourth

petition was denied. (MTD at 4.) 

4

petition in a higher court is also tolled. See Evans v. Chavis, 546 U.S.___, 2006 WL 42398 

(Jan. 10, 2006); Carey v. Saffold, 536 U.S. 214, 223 (2002). 

Here, petitioner’s judgment became final on November 13, 2001, and the statute

of limitations ran for 44 days until it was tolled by the filing of petitioner’s first state petition. 

Petitioner filed a total of four state habeas petitions in the following order: (1) Court of Appeal,

(2) Superior Court, (3) Superior Court, and (4) Supreme Court. Respondents argue that there is

no statutory tolling between the denial of petitioner’s first petition by the California Court of

Appeal and the filing of his second petition in the California Superior Court, and between the

denial of his second petition by the Superior Court and the filing of his third petition in the

Superior Court because petitioner proceeded to a lower or lateral court instead of to a higher state

court after his first petition was denied. (MTD at 4.) According to respondents’ calculation,

petitioner was entitled to a total of 407 days1 of statutory tolling from November 13, 2002, until 

December 25, 2003. (Id.) Although petitioner filed his federal petition in the U.S. District Court

for the Northern District of California on October 6, 2003, respondents argue that the petition

was incorrectly filed in that court. (Id.) Because petitioner is not entitled to any statutory tolling

when the federal petition is not properly filed, respondents argue that the limitations clock

continued to run for almost a year, until the case was transferred and the petition received by this

court on September 28, 2004. (Id.) 

Because of respondents’ concession of statutory tolling and position that the

statute of limitations expired on December 25, 2003, the issue that must be resolved is the date

on which petitioner’s federal habeas petition was filed for statute of limitations purposes. If

petitioner’s federal petition was filed on October 6, 2003, the date it was filed in the U.S. District

Court for the Northern District of California, the petition is timely. On the other hand, if the

Case 2:04-cv-02116-FCD-DAD Document 21 Filed 01/26/06 Page 4 of 7
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

 As noted above, the U.S. District Court for the Northern District of California did not

transfer the action to this district until almost a full year after the federal petition was originally

filed in that court.

5

filing date is September 28, 2004, when the federal petition was transferred and received by the

U.S. District Court for the Eastern District of California, the petition is untimely. Respondents

rely on the decision in Hood v. Galaza, 47 F. Supp. 2d 1144, 1146-47 (S.D. Cal. 1999) as

authority for the proposition that a federal petition filed with the wrong court does not toll the

statute of limitations. In that case, the district court concluded without analysis, that under §

2244(d)(2), a state habeas petition filed in the wrong superior court does not toll the statute of

limitations and that, similarly, there is no tolling when petitioner sends his federal habeas petition

to the wrong District Court. 47 F. Supp. 2d at 1147. This court is not persuaded that the

decision in Hood supports respondents’ position under the facts of the present case.

It cannot be determined from the decision in Hood whether the federal petition in

question was properly filed in the district court to which it was first sent. The district court in

Hood merely stated “[p]etitioner incorrectly mailed the instant habeas corpus petition to the

United States District Court for the Eastern District of California . . . .” Here, however, it is clear

that petitioner’s federal petition was properly filed with the U.S. District Court for the Northern

District of California. Pursuant to 28 U.S.C. § 2241(d), courts in both the district of conviction

and the district of confinement have concurrent jurisdiction over applications for habeas corpus

filed by state prisoners. When petitioner filed his federal habeas application, he was confined at

Salinas Valley State Prison which is located within the Northern District of California. While the

U.S. District Court for the Northern District of California was certainly free to transfer the action

to this court, it was not required to do so nor was there anything “wrong” or “improper” with

petitioner’s filing of the petition in that court.2

Moreover, the statutory tolling provision at 28 U.S.C. § 2244(d)(2), is applicable

for state habeas proceedings, not for federal court proceedings. “The time during which a

Case 2:04-cv-02116-FCD-DAD Document 21 Filed 01/26/06 Page 5 of 7
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

 Under the mailbox rule as set forth in Houston v. Lack, 487 U.S. 266, 276 (1988), the

date a federal habeas application is mailed, signed or placed in the hands of prison authorities, is

treated as the date of filing for statute of limitations purposes. See Jenkins v. Johnson, 330 F.3d

1146, 1149 n.1 (9th Cir. 2003) (filing date can be as early as when the prisoner signed the

petition); Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001) (mailing date is treated as the date of

filing); Anthony v. Cambra, 236 F.3d 568, 574-75 (9th Cir. 2000) (date of delivery to prison

authorities is filing date under mailbox rule). In this case the federal petition was signed and

presumably mailed to the District Court for the Northern District of California on October 1,

2003. 

6

properly filed application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted toward any period of limitation under

this subsection.” 28 U.S.C. § 2244(d)(2) (emphasis added). See also Duncan v. Walker, 533

U.S. 167, 180 (2001) (holding that the tolling provision of section 2244(d)(2) applies only to

State post-conviction review but not during the pendency of applications for federal review). 

Thus, § 2244(d)(2) is not applicable to the determination of the filing date of a federal habeas

petition for statute of limitations purposes. 

For the reasons set forth above, the undersigned concludes that petitioner’s federal

habeas petition was filed in October of 2003.3 Respondents concede that the statute of

limitations for the filing of that petition, in light of statutory tolling, was not set to expire until

December 25, 2003. Because the federal petition was filed more than two and a half months

before that date, the petition was timely filed and respondents’ motion should be denied.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Respondents’ May 31, 2005 motion to dismiss the habeas petition as untimely

be denied; and

2. Respondents be ordered to file their answer to petitioner’s second amended

petition for a writ of habeas corpus.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

Case 2:04-cv-02116-FCD-DAD Document 21 Filed 01/26/06 Page 6 of 7
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

7

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 

DATED: January 25, 2006.

DAD:4

mont2116.mtd

Case 2:04-cv-02116-FCD-DAD Document 21 Filed 01/26/06 Page 7 of 7