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United States District Court

Eastern District of California

David L. Fulbright,

Petitioner, No. Civ. S 04-2490 DFL PAN P

vs. Findings and Recommendation

D. L. Runnels, Warden,

Respondent.

-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

does not oppose the motion.

Petitioner was convicted May 12, 1995. Petitioner appealed

and May 29, 1996, the appellate court affirmed the judgment. His

conviction became final July 8, 1996, 40 days after the

California Court of Appeal filed its opinion. See Cal. Rules of

Court, rules 24(a), 28(b), 45(a); Cal. Civ. Proc. Code § 12a.

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2

A one-year limitation period for seeking federal habeas

relief then began to run. 28 U.S.C. § 2244(d)(1). Petitioner

had until July 8, 1997, to file a federal application and, absent

tolling, petitioner’s November 22, 2004, petition is late.

A properly filed state post conviction application tolls the

limitation period. 28 U.S.C. § 2244(d)(2). 

November 13, 1996, petitioner applied for a writ of habeas

corpus in the trial court, which denied relief 56 days later on

January 8, 1997. The limitation period was tolled during this

period and extended his time to file his federal petition until

September 2, 1997.

Petitioner’s many subsequent state habeas petitions did not

toll the limitation period because all were filed after September

2, 1997. 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’s first

federal petition, which was dismissed for failure to exhaust his

state remedies, would not have tolled the limitation period even

if it had been timely filed. Duncan v. Walker, 531 U.S. 991

(2001).)

Petitioner does not argue he is entitled to equitable

tolling.

I find petitioner’s November 22, 2004, habeas petition is

untimely and therefore recommend respondent’s June 28, 2005,

motion be granted and this action be dismissed.

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3

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: December 13, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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