UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

DAVID ALLEN KLINKE, 

Petitioner, 

v. 

JEFF PREMO, 

Respondent. 

Clarke, Magistrate Judge. 

6:15-cv-01823-CL 

FINDINGS AND 

RECOMMENDATION 

Petitioner filed a petition under 28 U.S.C. § 2254 

challenging his convictions for one count of Assault in the 

Second Degree and one count of Assault in the Third Degree. 

Petition (#2). 

Respondent moves to deny relief on the ground that 

petitioner's petition was not filed within the 2 year 

limitations period prescribed by 28 U.S.C. § 2244(d). Response 

(#11) p. 1. Petitioner has filed a Brief in Support of 

1 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01823-CL Document 17 Filed 12/13/16 Page 1 of 4
Petition (#15). However, petitioner's brief does not address 

respondent's statute of limitations argument. 

After a jury convicted petitioner, the trial court 

imposed a sentence of 90 days for the count of Assault in the 

Third Degree and a consecutive 70 month sentence for the count 

of Assault in the Second Degree. The judgment of conviction is 

dated May 6, 2005. 

On June 13, 2005, petitioner directly appealed his 

convictions, but the Court of Appeals affirmed without opinion 

and the Oregon Supreme Court denied review. Exhibits 106 -

111. On July 12, 2012, petitioner appealed his convictions a 

second time but the Court of Appeals dismissed on its own 

motion. Exhibits 112 - 114. 

Petitioner filed a Petition for Post-conviction Relief on 

April 28, 20110. (Exhibit 116) but the petition was dismissed 

at the request of both parties as premature. Exhibits 117, 

119. 

Petitioner filed a timely Petition for Post-conviction 

relief on June 21, 2012. The Marion County Circuit Court 

granted the state's motion for summary judgment and dismissed 

the petition with prejudice on January 10, 2014. Exhibits 120 

- 125. 

Petitioner filed the petition in this case on May 28, 

2015. 

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Case 6:15-cv-01823-CL Document 17 Filed 12/13/16 Page 2 of 4
Under§ 2244(d), a petitioner has one year from the date 

a direct appeal is final to file a federal habeas corpus. The 

one year limitations period is tolled during the time a 

properly filed state collateral proceeding is pending. Time 

elapsed after the final judgment and before a collateral 

filing, and time after final collateral disposition and before 

federal filing counts against the year. Nino v. Galaza, 183 

F . 3 d 1 O O 3 , 1 O 0 6 - 7 ( 9th Cir . 19 9 9 ) . 

Between January 10, 2014, the date of the last postconviction judgment, and May 28, 2015, the date petitioner 

signed the petition in this proceeding, 503 days accrued., 

which exceeds the 365 day limitations period set forth in 28 

u.s.c. § 2244 (d). 

Petitioner's petition (32) should be denied on the ground 

that it is time barred. The Clerk of the Court should be 

directed to enter a judgment dismissing this proceeding with 

prejudice. 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice 

of appeal pursuant to Rule 4(a) (1), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district 

court's judgment or appealable order. The parties shall have 

fourteen (14) days from the date of service of a copy of this 

recommendation within which to file specific written 

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Case 6:15-cv-01823-CL Document 17 Filed 12/13/16 Page 3 of 4
objections with the court. Thereafter, the parties have 

fourteen (14) days within which to file a response to the 

objections. Failure to timely file objections to any factual 

determinations of the Magistrate Judge will be considered a 

waiver of a party's right to de novo consideration of the 

factual issues and will constitute a waiver of a party's right 

to appellate review of the findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge's 

recommendation. 

Certificate of Appealability 

Should petitioner appeal, a certificate of appealability 

should be denied as petitioner has not made a substantial 

showing of the denial of a constitutional right. See, 28 

U.S.C. § 2253(c)(2). 

DATED this t) day of 

Mark D. Clarke 

United States Magistrate Judge 

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