United States District Court, D. Utah
DAVID T. SUMMERS, Petitioner,
STATE OF UTAH, Respondent.
MEMORANDUM DECISION & ORDER GRANTING MOTION TO
DISMISS HABEAS PETITION
N. PARRISH JUDGE.
on untimely filing of the petition, the Court grants
Respondent's motion to dismiss.
pleaded guilty to attempted aggravated sexual abuse of a
child. On August 28, 2008, he was sentenced to a
three-years-to-life term; no appeal followed. On February 4,
2009, Petitioner filed a state petition for post-conviction
relief, which was dismissed on September 30, 2009; no appeal
filed his first federal habeas petition on August 7, 2009.
Summers v. Utah State Prison, No. 2:09-CV-703 DAK
(D. Utah Oct. 28, 2009) (dismissal order). It was denied for
failure to exhaust. Id. The merits were not
August 9, 2012, almost four years after he was sentenced,
Petitioner filed in the underlying criminal case a notice of
appeal, which was summarily dismissed as untimely. State
v. Summers, No. 20120669-CA (Utah Ct. App. Oct. 2, 2012)
(Order of Summary Dismissal).
submitted his second federal habeas petition on June 11,
2013. Summers v. Utah, No. 2:13-CV-431 RJS (D. Utah
Oct. 29, 2013) (dismissal order). It was dismissed for
failure to pay the filing fee. Id. The merits were
not addressed. Id. Petitioner's application
for a certificate of appealability was denied. Summers v.
State, 560 Fed. App'x 778 (10th Cir. 2014).
August 25, 2015, Petitioner filed his current federal habeas
statute puts a one-year limitation period on filing of a
habeas-corpus petition. 28 U.S.C.S. § 2244(d)(1) (2017).
The period begins to run on “the date on which the
[state] judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review.” Id. A state judgment becomes final
when the United States Supreme Court “affirms a
conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for
filing a certiorari petition expires.” Clay v.
United States, 537 U.S. 522, 527 (2003); Locke v.
Saffle, 237 F.3d 1269, 1271-72 (10th Cir. 2001).
one-year period of limitation for filing a federal habeas
petition is tolled or suspended during the pendency of a
state application for post-conviction relief properly filed
during the limitations period.” May v.
Workman, 339 F.3d 1236, 1237 (10th Cir. 2003) (citing 28
U.S.C. § 2244(d)(2)). A “state postconviction
application ‘remains pending' ‘until the
application has achieved final resolution through the
State's postconviction procedures.'”
Lawrence v. Florida, 549 U.S. 327, 332 (2007)
(quoting Carey v. Saffold, 536 U.S. 214, 220
(2002)); see also Fisher v. Raemisch, 762 F.3d 1030,
1032 (10th Cir. 2014). Once the post-conviction case ends in
state court, the one-year limitation period begins to run
however, does not revive the limitations
period-i.e., it does not restart the clock at zero.
It serves only to suspend a clock that has not already run.
See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th
Cir. 2001); see also Laws v. LaMarque, 351 F.3d 919,
922 (9th Cir. 2003). Thus, any time between when a
petitioner's direct appeal becomes final and when he
files his petition for state post-conviction relief is
counted in the limitations period. Moreover, any time between
when the state post-conviction action concludes and before a
petitioner's habeas petition is filed also counts toward
the limitations period because state-collateral review only
pauses the one-year period; it does not delay its start.
See McMonagle v. Meyer, 766 F.3d 1151, 1159 (9th
Cir. 2014) (J. Rawlinson, dissenting) (“Although filing
of collateral proceedings may toll the running of the
limitations period, it does not affect commencement of the
running of the limitations period.”).
other words, time elapsing after a petitioner's
conviction becomes final on direct review, but before a state
post-conviction petition is filed, and time after final
disposition of the petitioner's post-conviction
proceedings, but before the filing of the federal habeas
petition, aggregate to count against the
one-year-limitation period. See Sutton v. Cain, 722
F.3d 312, 316 n.6 (5th Cir. 2013) (“To calculate when
the limitations period has run, we aggregate the time between
(i) the date the petitioner's conviction became
‘final' and the date the petitioner filed his state
[post-conviction] application; and (ii) the date the state
[post-conviction] process concluded and the date the
petitioner filed his federal habeas petition.”).
was convicted on August 28, 2008. He had thirty days to
appeal but did not. Utah requires a notice of appeal to be
filed “within 30 days after the date of entry of the
judgment or order appealed from.” Utah R. App. P. 4(a).
“Failure to timely file an appeal . . . constitutes a