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Name: Velasquez v. Kirkland
Case #: 08-55823
Court: US District Court
District 9 Cir
Opinion Date: 05/10/2011

Petitioner is not entitled to statutory or equitable tolling where his delays between filing each state habeas petition are unreasonable. In 2001 petitioner was convicted of first degree murder. The state courts affirmed petitioner’s conviction, with review denied by the California Supreme Court on November 12, 2003. He did not seek certiorari, so his conviction became final on February 10, 2004. On February 4, 2005, petitioner filed a petition for writ of habeas corpus in the superior court, which was finally denied on April 26, 2005. Ninety-two days later he filed a writ petition in the Court of Appeal, which was summarily denied on December 9, 2005. Eighty-one days later he filed for review in the California Supreme Court, which sought an informal response from the Attorney General, then summarily denied the petition on March 19, 2007. Five days later he filed a habeas petition in the U. S. District Court, which dismissed the petition as untimely.
Petitioner is not entitled to statutory tolling because of unreasonable delay. AEDPA Antiterrorism and Effective Death Penalty Act)requires a state petitioner to seek federal habeas relief within one year after his state conviction becomes final. The limitation is tolled for the “time during which a properly filed application for” post-conviction relief is pending. (28 U.S.C. sec. 2244(d)(2).) This “includes the period between (1) a lower court’s adverse determination, and (2) the prisoner’s filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.” Thus, AEDPA’s limitations are tolled for the period the California courts actually considered the petition as well as the intervals between the filing of such petitions, provided the petitions are timely filed. Since the California courts here gave no “clear indication” whether petitioner’s requests for review were timely, the Ninth Circuit examined the delays and found them unreasonable. Although California’s system is indeterminate, absent some direction from the California courts or legislature, the federal court must interpret California’s reasonableness standard in such a way that it does not result in delays substantially longer than allowed in States which have determinate reasonableness rules. The federal court compared petitioner’s delays to the 30 to 60 days that most States provide as deadlines. Without a sufficient justification for these delays, and without contrary indication from the California courts that the petitions were timely, the federal court found the delays unreasonable.
Nor is Petitioner entitled to equitable tolling of the AEDPA limits: A prisoner may be entitled to equitable tolling of the one-year limitation period if he shows (1) he has been diligently pursuing his rights, and (2) some extraordinary circumstance beyond the prisoner’s control occurred which prevented timely filing. (Holland v. Fla. (2010) 130 S.Ct. 2549, 2562.) Petitioner averred he could not have known a state habeas petition denied “on the merits” could be considered untimely for purposes of tolling the statutory AEDPA limits, because Evans v. Chavis (2006) 546 U.S. 189, was decided after his state petitions were filed. However, in Carey v. Saffold (2002) 536 U.S. 214, 225, the Supreme Court found a state court may at times address an untimely petition on the merits, and rejected the idea that a state court’s denial “on the merits” precluded a federal court from finding the petition untimely. Thus, petitioner was on notice his state delays did not toll the AEDPA deadline. Further, his attorney’s failure to recognize that the delays in filing might render a federal petition untimely is not the result of an “external force” making timely filing impossible, but the result of petitioner’s own actions.