1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT WILLIAM STEPP, Case No. 20-cv-01688-JD

8 Plaintiff, ORDER RE MOTION TO DISMISS 9 v. AND CERTIFICATE OF APPEALABILITY 10 IN RE: WRIT OF HABEAS CORPUS, Re: Dkt. No. 18 Defendant. 11

12 13 Robert William Stepp, a state prisoner, filed pro se a habeas petition under

2254. Respondent filed a motion to dismiss on the grounds that the petition is barred by the 15 statute of limitations. Stepp has not filed an opposition or otherwise communicated with the Court 16 despite being provided an additional reminder. Docket No. 19. The Court nevertheless has 17 reviewed the motion, and it is granted. 18 STATUTE OF LIMITATIONS 19 The Antiterrorism and Effective Death Penalty Act of 1996 imposes a statute of limitations 20 on petitions for writs of habeas corpus filed by state prisoners. Petitions filed by prisoners 21 challenging noncapital state convictions or sentences must be filed within one year of the latest of 22 the date on which: (A) the judgment became final after the conclusion of direct review or the time 23 passed for seeking direct review; (B) an impediment to filing an application created by 24 unconstitutional state action was removed, if such action prevented petitioner from filing; (C) the 25 constitutional right asserted was recognized by the Supreme Court, if the right was newly 26 recognized by the Supreme Court and made retroactive to cases on collateral review; or (D) the 27 factual predicate of the claim could have been discovered through the exercise of due diligence. 1 or other collateral review is pending is excluded from the one-year time limit.

2244(d)(2). The one-year period generally will run from “the date on which the judgment became 3 final by the conclusion of direct review or the expiration of the time for seeking such review.” 28

(d)(1)(A). 5 Background 6 In 2017, Stepp pled no contest to attempted murder and admitted a great bodily injury 7 allegation and one prior strike conviction. Motion to Dismiss (“MTD”) Ex. A at 6-12 of 134. On 8 November 16, 2017, Stepp was sentenced to twenty-one years in prison.

at 13-17 of 134. 9 Stepp did not file a direct appeal. 10 On February 16, 2019, Stepp filed a habeas petition in the Humboldt County Superior 11 Court.

Ex. B. at 39 of 1341 The superior court denied the petition on March 7, 2019. Petition 12 (Docket No. 1) at 53-56. 13 On July 17, 2019, Stepp filed a habeas petition in the California Court of Appeal. MTD 14 Ex. C. The court denied the petition on August 29, 2019.

15 On September 13, 2019, Stepp filed a petition in the California Supreme Court.

Ex. D 16 at 53 of 134. The court denied the petition on January 2, 2020.

at 133 of 134 17 Stepp filed this petition on February 22, 2020. Petition at 89. 18 Discussion 19 Stepp’s state court judgment became final on January 15, 2018, sixty days after sentencing, 20 when the deadline for filing a notice of appeal expired. See Cal. Rule of Court 8.308(a) (notice of 21 appeal must be filed within 60 days of criminal judgment); see also Mendoza v. Carey,

1065, 1067 (9th Cir. 2006) (California conviction becomes final 60 days after judgment if not 23 appealed). The one-year limitations period began to run the next day, January 16, 2018, and 24 expired one year later on January 15, 2019. See Patterson v. Stewart,

(9th 25 Cir. 2001) (calculating AEDPA’s one-year limitation period according to Federal Rule of Civil 26

27 1 The Court affords petitioner application of the mailbox rule as to the filing of his pro se habeas 1 Procedure 6(a)). This federal petition filed on February 22, 2020, is untimely by more than one 2 year, unless Stepp is entitled to tolling. 3 Stepp’s first state habeas petition was filed on February 16, 2019, approximately one 4 month after the expiration of the statute of limitations. He will not receive statutory tolling for this 5 petition or the subsequent filings because they were filed after the expiration of the statute of 6 limitations. See Ferguson v. Palmateer,

(9th Cir. 2003) (“[S]ection 2244(d) 7 does not permit the reinitiation of the limitations period that has ended before the state petition 8 was filed,” even if the state petition was timely filed). 9 Even if Stepp had presented an argument to provide tolling for one month, from the date 10 the statute of limitations expired to the date he filed his first state habeas petition, this federal 11 habeas action would still be untimely. Stepp’s state habeas petitions concluded when the 12 California Supreme Court denied his petition on January 2, 2020. He did not file this federal 13 petition until February 22, 2020, more than six weeks later. Even if Stepp were permitted to toll 14 the period from the date the statute of limitations expired to the date he filed his first state habeas 15 petition and for the entirety that his state habeas petitions were pending, this federal petition would 16 still be untimely. There is no statutory tolling for the period from the denial of the final state 17 petition to the filing of a federal petition. See Nino v. Galaza,

(9th Cir. 18 1999), overruled on other grounds by Harris v. Carter,

(9th Cir. 2008) 19 (holding statute of limitations is not tolled between denial of state habeas petition and filing of 20 federal habeas petition). 21 CONCLUSION 22 1. Respondent’s motion to dismiss (Docket No. 18) is GRANTED and this case is 23 DISMISSED. The Clerk is requested to close the case. 24 2. A certificate of appealability (“COA”) will not issue because this is not a case in 25 which “jurists of reason would find it debatable whether the petition states a valid claim of the 26 denial of a constitutional right and that jurists of reason would find it debatable whether the 27 district court was correct in its procedural ruling.” Slack v. McDaniel,

(2000). 1 the petition. 2 IT IS SO ORDERED. 3 || Dated: April 13, 2021 4 5 JAMES D@exATO 6 United Stftes District Judge 7 8 9 10 11 12

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