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Chrisman v. Benzon

United States District Court, D. Utah

September 3, 2019

THOMAS JOSEPH CHRISMAN, Petitioner,
v.
LARRY BENZON, Respondent.

          MEMORANDUM DECISION & ORDER GRANTING MOTION TO DISMISS HABEAS PETITION

          TENA CAMPBELL UNITED STATES DISTRICT JUDGE.

         BACKGROUND

         State criminal case.

         Petitioner was convicted of state crimes. State v. Chrisman, 2011 UT App 189, ¶ 1. He was sentenced to five-to-life terms on each count. (Doc. No. 12, at 9.) His direct appeal ended when the Utah Court of Appeals affirmed his conviction on June 16, 2011. Chrisman, 2011 UT App 189, ¶ 8. Petitioner did not seek certiorari review in the Utah Supreme Court. The time to do so expired July 18, 2011. Utah R. App. P. 48(a) (“A petition for a writ of certiorari must be filed with the Clerk of the Supreme Court within 30 days after the entry of the final decision by the Court of Appeals.”).

         State post-conviction case.

         On May 8, 2012, Petitioner applied for state post-conviction relief. (Doc. No. 12-13.) Summary judgment was granted for the State and affirmed by Utah Court of Appeals. Chrisman v. Utah, No. 20160637-CA (Utah Ct. App., Sept. 19, 2016). Petitioner did not seek certiorari review in the Utah Supreme Court. The time to do so expired October 19, 2016. See Utah R. App. P. 48(a).

         Petitioner filed this federal habeas petition on August 31, 2017. (Doc. No. 1.) He later filed an amended petition (Doc. No. 11), to which Respondent responded. Respondent moves for dismissal (Doc. No. 12), and Petitioner has responded (Doc. No. 29).

         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 on July 18, 2011, for Petitioner to seek certiorari review in the Utah Supreme Court, 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 July 18, 2011, the limitation period ran 295 days, when, on May 8, 2012, Petitioner filed his (ultimately unsuccessful) state post-conviction application and tolled the period. Seventy days remained at that point. The state post-conviction action concluded on October 19, 2016, when the time expired for Petitioner to seek certiorari review in the Utah ...


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