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Mulder v. Nielson

United States District Court, D. Utah

June 18, 2019

TODD WAYNE MULDER, Plaintiff,
v.
WARDEN NIELSON, Defendant.

          MEMORANDUM DECISION & ORDER GRANTING MOTION TO DISMISS HABEAS PETITION

          DALE A KIMBALL UNITED STATES DISTRICT JUDGE

         BACKGROUND

         State criminal case.

         Petitioner was convicted of murder, and aggravated robbery and kidnapping. State v. Mulder, 2009 UT App 318, ¶ 1. He was sentenced to three five-to-life terms. (Doc. No. 1.) His direct appeal ended when the Utah Supreme Court denied certiorari review on March 5, 2010. State v. Mulder, 230 P.3d 127 (table) (Utah 2010). Petitioner did not seek relief in the United States Supreme Court. The time to do so expired June 3, 2010. Sup. Ct. R. 13.1 (giving 90 days to file “petition for a writ of certiorari to review a judgment in any case . . . entered by a state court of last resort”).

         State post-conviction case.

         On August 25, 2010 Petitioner applied for state post-conviction relief. Mulder v. State, 2016 UT App 207, ¶ 10. Summary judgment was granted for the State and affirmed by Utah Court of Appeals. Id. ¶ 11. Utah Supreme Court denied certiorari review on March 10, 2017. Mulder v. State, 393 P.3d 285 (table) (Utah 2017).

         Petitioner filed this federal habeas petition on January 29, 2018. (Doc. No. 1.) Respondent moves for dismissal, (Doc. No. 12), and Petitioner has responded, (Doc. No. 14).

         ANALYSIS

         Federal statute sets a one-year period of limitation to file a habeas-corpus petition. 28 U.S.C.S. § 2244(d)(1) (2019). The period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). So, when the time expired for Petitioner to seek certiorari review in the United States Supreme Court on June 3, 2010, the one-year limitation period began running.

         1. Statutory tolling

          The limitation period “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.S. § 2244(d)(2) (2019)). 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 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.

         Tolling, however, does not revive the limitations period--i.e., 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. And, 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.”).

         From June 3, 2010, the limitation period ran 83 days, when, on August 25, 2010, Petitioner filed his (ultimately unsuccessful) state post-conviction application and tolled the period. 282 days remained at that point. The state post-conviction action concluded on March 10, 2017, when the Utah Supreme Court denied certiorari review. Mulder, ...


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