Calderon
Calderon v. United States District Court
Opinion
Lead Opinion
Fernandez, J.
The State of California, through the War-, den of the California State Prison at San Quentin, moved to dismiss the proceedings in the United States District Court, which were filed on behalf of Horace Edwards Kelly. *783 The State claimed that the Antiterrorism and Effective Death Penalty Act’s one-year statute of limitations for filing applications for a writ of habeas corpus precluded the continuanee of the proceedings. See 28 U.S.C. § 2244 (d)(1). The district court declared that the filing deadlines of the AEDPA did not apply to this matter and denied the motion. This petition for a writ of mandamus followed. We agree with the State and order the writ to issue.
BACKGROUND
Way over ten years ago, Kelly murdered three people in three separate incidents. On November 16, 1984, he slew Sonia Reed in San Bernardino County, California, and he followed up that deed by slaying Ursula Houser on November 17, 1984, in the same county. He then shifted his facinorous operations, and on November 22, 1984, he took the life of an eleven-year-old boy, Danny 0., in Riverside County, California. He was convicted and sentenced to death for Danny O.’s murder, and on November 26, 1990, the…
Dissenting Opinion
Tashima, J.
dissenting in part:
I agree with the majority that because real party in interest Kelly had not filed a habeas corpus petition by April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Chapter 153 of the AEDPA, including the newly-enacted statute of limitations for habeas petitions, 28 U.S.C. § 2254 (d)(1), applies to him. See Lindh v. Murphy, — U.S. -, -, -, 117 S.Ct. 2059, 2061, 2069 , 138 L.Ed.2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir.1997) (en banc). However, I cannot agree that this case does not present the “extraordinary circumstances” entitling Kelly to the tolling of the AEDPA’s statute of limitations. I therefore respectfully dissent from Part B of the majority opinion and from the judgment.
In my view, this case is squarely controlled by Calderon v. United States Dist. Court, 112 F.3d 386 (9th Cir.1997) (Beeler). In Beeler, we first held that § 2254(d)(1) was a statute of limitations and not a jurisdictional provision; thus, that it was subject to equitable tolling. Id. at 390-91. We then described the few cases which would be eligible for equitable tolling: “Equitable tolling will not be available…