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Summers v. State

United States District Court, D. Utah

September 18, 2017

DAVID T. SUMMERS, Petitioner,
v.
STATE OF UTAH, Respondent.

          MEMORANDUM DECISION & ORDER GRANTING MOTION TO DISMISS HABEAS PETITION

          JILL N. PARRISH JUDGE.

         Based on untimely filing of the petition, the Court grants Respondent's motion to dismiss.

         BACKGROUND

         Petitioner 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 followed.

         Petitioner 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 addressed. Id.

         On 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).

         Petitioner 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.[1] Id. Petitioner's application for a certificate of appealability was denied. Summers v. State, 560 Fed. App'x 778 (10th Cir. 2014).

         On August 25, 2015, Petitioner filed his current federal habeas corpus petition.

         PERIOD OF LIMITATION

         Federal 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).

         “The 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 again.[2]

         Tolling, 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.”).

         In 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.”).

         Petitioner 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 ...


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