Jerry Hamilton v. Maurice Junious

MEMORANDUM

Petitioner Jerry Fred Hamilton appeals the summary dismissal of his habeas petition as untimely and the denial of his motion for stay and abeyance as moot. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

Hamilton’s petition is untimely. The Anti-Terrorism and Effective Death Penalty Act (AEDPA) governs this petition. Woodford v. Garceau, 538 U.S. 202, 210 , 123 S.Ct. 1398 , 155 L.Ed.2d 363 (2003). AEDPA’s one-year statute of limitations expired on April 21, 2009. 28 U.S.C. § 2244 (d)(1)(A). Hamilton did not file his petition until May 19, 2009.

Statutory tolling does not apply. The superior court denied Hamilton’s March 9, 2009, petition as untimely and on the merits. An untimely petition is not properly filed and, therefore, cannot toll AEDPA’s limitations period. Pace v. DiGuglielmo, 544 U.S. 408, 417 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005). The California Court of Appeal’s dismissal of the petition with citations to In re Steele, 32 Cal.4th 682, 692 , 10 Cal.Rptr.3d 536 , 85 P.3d 444 (2004) and In re Hillery, 202 Cal.App.2d 293 , 20 Cal.Rptr. 759 (1962) did not undo the supe rior court’s determination that Hamilton’s petition was…