213 F.3d 643 (9th Cir. 2000), 99-15493, Phelps v. Alameda

Docket Nº:99-15493.
Citation:213 F.3d 643
Party Name:Kevin PHELPS, Petitioner--Appellant, v. Edward ALAMEDA, Warden, Deuel Vocational Institution, Tracy, California; People of the State of California, Respondents--Appellees. Jason DORTON, Petitioner--Appellant, v. Edward ALAMEDA, Warden, Deuel Vocational Institution, Tracy, California; People of the State of California, Respondents--Appellees.
Case Date:March 29, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 643

213 F.3d 643 (9th Cir. 2000)

Kevin PHELPS, Petitioner--Appellant,

v.

Edward ALAMEDA, Warden, Deuel Vocational Institution, Tracy, California; People of the State of California, Respondents--Appellees.

Jason DORTON, Petitioner--Appellant,

v.

Edward ALAMEDA, Warden, Deuel Vocational Institution, Tracy, California; People of the State of California, Respondents--Appellees.

No. 99-15493.

United States Court of Appeals, Ninth Circuit

March 29, 2000

Submitted March 17, 2000 [**]

D.C. No. CV-98-02002-MMC. No. 99-15495. D.C. No. CV-98-02003-MMC

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeals from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding.

Before O'SCANNLAIN, LEAVY, and RYMER, Circuit Judges.

MEMORANDUM [*]

Kevin Phelps and Jason Dorton appeal the district court's dismissal of their habeas petitions as barred by the one year statute of limitations. 28 U.S.C. § 2244(d). We have jurisdiction, 28 U.S.C. § 1291, and affirm. [***]

Under Section 2244(d)(2), the statute of limitations begins to run on the date that the state post-conviction relief process ended. We agree with the district court that the Supreme Court's denial was an "order denying a petition for review" under Rule 24(a) of the California Rules of Court, not a "decision of the Supreme Court." When a habeas petition fails to make out a prima facie case, the California Supreme Court rejects it as "summary denial," In re Clark, 21 Cal.Rptr.2d 509, 521 n. 9 (Cal.1993); otherwise the court will issue an order to show cause. See In re Lawler, 151 Cal.Rptr. 833, 835 (Cal.1979). As this did not happen here, and no order granting review was ever issued so as to make the order signed by the Chief Justice a decision after review, the order became final on the day on which it was filed (April 30, 1997).

Phelps and Dorton argue that the AEDPA limitations period should be equitably tolled. However, no "extraordinary circumstances beyond a prisoner's control ma [d]e it impossible to file a petition on time." Calderon v. United States District Court (Kelly), 163 F.3d 530, 541 (9th Cir.1998) (en banc) (internal quotations omitted). Here, counsel was...

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