Gibson v. Brown

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

LEE WINFORD GIBSON, Case No. 3:23-cv-01401-MC

Petitioner, OPINION AND ORDER

v.

STEVE BROWN, Superintendent, WCCF,

Respondent.

___________________________________

MCSHANE, District Judge.

Petitioner brings this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254

challenging the state court’s decision to revoke his probation and contends that his counsel

rendered ineffective at the revocation hearing. Respondent argues that the Petition should be

denied because it is untimely and barred from federal review. Because Petitioner did not seek

federal habeas relief within the one-year statute of limitations, his Petition is time-barred and

must be denied.

DISCUSSION

In 2012, Petitioner was convicted of Attempted Rape in the First Degree, Attempted

Unlawful Sexual Penetration in the First Degree, and Attempted Sodomy in the First Degree.

Resp’t Ex. 101 at 41-46. The trial court imposed a ten-year term of supervised probation on the

attempted rape count and concurrent seventy-month terms of imprisonment on the attempted

sexual penetration and sodomy counts. Id. Petitioner served his prison sentence and was released

on probation and post-prison supervision.

In January 2019, the trial court found that Petitioner had violated the terms of his

probation. The court revoked Petitioner’s release on probation and sentenced him to an

additional 45 months of imprisonment. Resp. Exs. 101 at 22-25, 47; Resp’t Ex. 106.

In July 2019, Petitioner sought post-conviction relief (PCR) in the Oregon courts and

claimed that his counsel provided ineffective assistance at Petitioner’s revocation hearing. Resp’t

Ex. 107. The PCR court denied relief, the Oregon Court of Appeals affirmed without opinion,

and the Oregon Supreme Court denied review. Resp’t Exs. 123-24, 128-29.

Petitioner now seeks federal habeas relief, arguing that his counsel failed to advise

Petitioner that his probation conditions were unconstitutional and invalid. Respondent contends

that Petitioner filed his federal Petition beyond the one-year statute of limitations and the Petition

is thus barred from federal review. I agree.

Generally, a petitioner must file a federal habeas petition challenging a state court

judgment within one year after the challenged judgment becomes final. 28 U.S.C. § 2244(d)(l)

(providing that a “1-year period of limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State court”). A state court judgment

becomes final, and the one-year statute of limitations begins to run, when direct review

proceedings have concluded. Id. § 2244(d)(l)(A). The limitations period is tolled, however,

during the time in which “a properly filed application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2). The Ninth

Circuit recently held that a state application for post-conviction relief is no longer “pending”

when “no other state avenues for relief remain open,” rather the date on which the state court

issues final judgment or mandate. Melville v. Shinn, 68 F.4th 1154, 1160-61 (9th Cir. 2023)

(citing Lawrence v. Florida, 549 U.S. 327, 332 (2007)).

Here, the trial court issued its revocation decision on January 15, 2019, and Petitioner did

not file a direct appeal. The judgment became final and the statute of limitations began to run on

February 14, 2019. See Or. Rev. Stat. § 138.071 (allowing thirty days to file an appeal); 28

U.S.C. § 2244(d)(l)(A) (providing that statute of limitations begins to run on “the date on which

the judgment became final by the conclusion of direct review or the expiration of the time for

seeking such review”).

The statute of limitations ran for 160 days before Petitioner filed his PCR petition in state

court on July 24, 2019. Resp’t Ex. 107. The limitations period was tolled, or was stopped, during

the pendency of Petitioner’s PCR proceedings. 28 U.S.C. § 2244(d)(2).

Petitioner unsuccessfully appealed the denial of PCR relief, and on September 1, 2022,

the Oregon Supreme Court denied review. Resp. Exs. 123-25, 128. The time to seek

reconsideration of the order denying review expired fourteen days later, on September 15, 2022,

and Petitioner did not seek reconsideration. Or. R. App. P. 9.25(1) (“A party seeking

reconsideration of a decision of the Supreme Court shall file a petition for reconsideration within

14 days after the date of the decision.”). No further avenues of relief remained opened to

Petitioner at that time, and the statute of limitations restarted on September 15, 2022.

The statute of limitations ran for another 375 days before Petitioner signed his federal

habeas Petition on September 25, 2023. See Pet. at 15. In total, the statute of limitations ran for

535 days, well beyond the one-year statute of limitations, and the federal Petition is untimely.

Petitioner does not address the untimeliness of his Petition or present grounds to support

equitable tolling. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (holding that

equitable tolling of the statute of limitations is available “only if extraordinary circumstances

beyond” the petitioner’s control made “it impossible to file a petition on time”) (citation

omitted); see also Holland v. Florida, 560 U.S. 631, 649 (2010). Accordingly, the Petition is

barred from federal review.

CONCLUSION

The Petition for Writ of Habeas Corpus (ECF No. 1) is DENIED as untimely and this

case is DISMISSED. A Certificate of Appealability is DENIED on the basis that Petitioner has

not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

DATED this 7th day of May, 2024.

s/ Michael J. McShane

MICHAEL J. MCSHANE

United States District Judge