United States District Court, D. Utah
MEMORANDUM DECISION & ORDER GRANTING MOTION TO
DISMISS HABEAS PETITION
KIMBALL UNITED STATES DISTRICT JUDGE
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”).
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).
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).
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
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.
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
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.”).
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,