Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tortolano v. Ramirez

United States District Court, D. Idaho

October 30, 2018

BRENT N. TORTOLANO, Petitioner,
v.
AL RAMIREZ, Respondent.

          MEMORANDUM DECISION AND ORDER

          David C. Nye U.S. District Court Judge.

         The Petition for Writ of Habeas Corpus filed by Petitioner Brent N. Tortolano is now fully briefed and ripe for adjudication. Dkt. 1, 13. The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by the parties. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). Having carefully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.

         THRESHOLD TIMELINESS ISSUE

         In his Answer and Brief in Support of Dismissal, Respondent Al Ramirez asserts that Petitioner's entire Petition should be dismissed for failure to file the Petition within the statute of limitations period. Dkt. 13. The Court will address this threshold defense first.

         1. Standard of Law

         The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a petitioner to seek federal habeas corpus relief within one year 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.”[1] 28 U.S.C. § 2244(d)(1)(A). One year means 366 days, for example, from January 1, 2000, to January 1, 2001. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil Procedure 6(a) to AEDPA).

         Under 28 U.S.C. § 2244(d)(1)(A), the date of “finality” that begins the one-year time period in cases originating in the Idaho state courts is as follows, depending on how far a petitioner pursues his claim:

Action Taken

Finality Occurs

No appeal is filed after state district court order or judgment

42 days later, see Idaho Appellate Rule 14

Appeal is filed and Idaho Court of Appeals issues a decision, but no petition for review is filed with the Idaho Supreme Court

21 days later, see Idaho Appellate Rule 118

Appeal is filed and Idaho Supreme Court issues a decision or denies a petition for review of an Idaho Court of Appeals decision, and Petitioner does not file a petition for writ of certiorari with the United States Supreme Court

90 days later, see United States Supreme Court Rule 13

After Idaho Supreme Court issues a decision or denies a petition for review, Petitioner files a petition for writ of certiorari to the United States Supreme Court, and the petition is denied

Date of denial

After Idaho Supreme Court issues a decision or denies a petition for review, Petitioner files a petition for writ of certiorari to the United States Supreme Court, the petition is granted, and the United States Supreme Court issues a decision

Date of decision

         In each instance above, “finality” is measured from entry of the final judgment or order, not from a remittitur or mandate, which are mere formalities. Gonzales v. Thaler, 132 S.Ct. 641, 653 (2012); Clay v. United States, 537 U.S. 522, 529 (2003); Wixom v. Washington, 264 F.3d 894, 898 n.4 (9th Cir. 2001).

         AEDPA also contains a statutory tolling provision that stops or suspends the one-year limitations period from running during the time in “which a properly filed application for State postconviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2) (emphasis added). The “time limits on postconviction petitions are ‘condition[s] to filing'”; therefore, “an untimely petition [is] not deemed ‘properly filed.'” Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) (quoting Artuz v. Bennett, 533 U.S. 4, 8, 11 (2000)).

         For purposes of calculating the federal statute of limitations, this statutory tolling provision applies only to “pending” actions; therefore, the additional 21-, 42- and 90-day time periods associated with the calculation of finality after direct appeal are not applied to extend the tolling periods for post-conviction actions. However, unlike direct appeal “finality, ” the term “pending” does extend through the date of the remittitur for post-conviction actions.[2]

         The federal statute is not tolled between the date the direct appeal is “final” and the filing of a proper post-conviction application, or between post-conviction finality and any successive collateral review petition. Id. Each time statutory tolling ends, the statute of limitations does not restart at one year, but begins running at the place where it stopped before the post-conviction action was filed.

         Once the federal statute of limitations has expired, it cannot be reinstated or resurrected by a later-filed state court action. See Ferguson v. Palmateer, 321 F.3d 820, 822 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed”).

         2. Background Facts and Discussion

         Petitioner was convicted of the second-degree murder of his girlfriend after his case was presented to a jury in a criminal action in the Fourth Judicial District Court in Ada County, Idaho. The Idaho Court of Appeals summarized the facts surrounding the crime as follows:

Penny Moore was shot once in the head while sitting in her car in a fast-food restaurant parking lot. Moore's boyfriend, Tortolano, had been seen in the restaurant with Moore, as well as arguing with her in her car, prior to the shooting. After a gunshot was heard by others outside the restaurant, Tortolano was seen speeding out of the parking lot by four acquaintances, screaming Moore's name, crying and operating his cell phone. Tortolano dialed 911 on his cell phone and was told to pull over until paramedics arrived. Tortolano drove into a car wash parking lot. Tortolano told police that he and Moore had gone to the restaurant to buy marijuana and that while he was in the restroom, she was shot. Moore died in the hospital from the gunshot wound four days after she was shot.
Seven weeks after the shooting, a gun was found at the car wash. The gun matched the description of a gun that Moore owned and that Tortolano had handled in the past. DNA from ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.