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