Dudley v. Hagey, No. 3:2008cv03042 - Document 11 (D. Or. 2009)
Court Description: OPINION AND ORDER. For these reasons, the Court DENIES the Petition for Writ of Habeas Corpus and DISMISSES this action. IT IS SO ORDERED. Signed on 02/10/09 by Judge Anna J. Brown. (pvh)
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FILElf09 FEB 1113(}6USOC~ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MICHAEL WADE DUDLEY, Civil No. 08-3042-BR Pet.it.ioner, OPINION AND ORDER v. SHANE HAGEY, Respondent. . John P. Eekrem PO Box 711 Medford, OR 97501 Attorney for Petitioner JOHN KROGER Attorney General LYNN DAVID LARSEN Attorney In Charge Department of Justice 1162 Court Street NE Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER - BROWN, Judge. Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ of Habeas Corpus is DENIED, and this action is DISMISSED. BACKGROUND On July 23, 2001, Petitioner was convicted on charges of Sodomy and Failure to Register as a Sex Offender. not directly appeal the judgment of conviction. Petitioner signed a ("PCR"). petition for Petitioner did On May 16, 2002, state post-conviction relief The PCR trial court dismissed the petition. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. On June 7, 2007, the PCR appellate judgment issued. On April 10, 2008, Petitioner filed his Petition for Writ of Habeas Corpus in this Court. should be denied as untimely. Respondent argues the Petition Petitioner did not file a reply brief. DISCUSSION The Anti-Terrorism and Effective Death Penalty Act imposes a one-year limitation period on habeas petitions filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244 (d). Section 2244 (d) (2) provides tolling of the one-year period for all of "[t]he time during which a properly 2 - OPINION AND ORDER - filed application for State post- conviction or other collateral review pertinent judgment or claim is pending." with respect 28 U.S.C. § to the 2244(d) (2). Time elapsed after the conviction is final and before a state PCR filing, and time after final disposition of the PCR and before filing of the federal petition counts against the year. Nino v. Galaza, 183 F.3d 1003, 1006-7 (9th Cir. 1999). Here, Petitioner did not file his federal petition within the limitation period. More than 365 days accrued between the finality of Petitioner's conviction and filing of the state PCR petition and the time between disposition of the PCR petition and filing of the instant petition. As such, the Petition for Writ of Habeas Corpus is untimely, and this action must be dismissed. CONCLUSION For these reasons, the Court DENIES the Petition for Writ of Habeas Corpus and DISMISSES this action. IT IS SO ORDERED. ()It DATED this 10 day of February, 2009. United States District Judge 3 - OPINION AND ORDER - ~:\Share\Brown-LawClerks\08-3042dudley0210opin.wpd
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