223 F.3d 1001 (9th Cir. 2000), 99-17653, Green v. White

Docket Nº:99-17653
Citation:223 F.3d 1001
Party Name:CHARLES TYREE GREEN, Petitioner-Appellant, v. THEO WHITE, Warden, Respondent-Appellee.
Case Date:September 05, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1001

223 F.3d 1001 (9th Cir. 2000)

CHARLES TYREE GREEN, Petitioner-Appellant,


THEO WHITE, Warden, Respondent-Appellee.

No. 99-17653

Office of the Circuit Executive

United States Court of Appeals, Ninth Circuit

September 5, 2000

Argued and Submitted August 11, 2000--San Francisco, California

Page 1002

Frank G. Prantil, Sacramento, California, for the petitionerappellant.

Dane R. Gillette, Deputy Attorney General, San Francisco, California, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California, D.C. No.CV-98-04237-CAL; Charles A. Legge, District Judge, Presiding

Before: David R. Thompson, Thomas G. Nelson and Barry G. Silverman, Circuit Judges.

T.G. NELSON, Circuit Judge:

Charles Tyree Green, a prisoner in the State of California, appeals from the federal district court's dismissal of his petition for a writ of habeas corpus. The district court found that the petition was untimely filed under 28 U.S.C.S 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). We have jurisdiction pursuant to 28 U.S.C. S 2253, and we affirm.


On July 25, 1986, a jury convicted Charles Tyree Green of first-degree murder and robbery. Green was sentenced to life in prison, without the possibility of parole. Following his direct state appeals, Green filed a petition for writ of habeas corpus in federal district court on October 8, 1993. The district court first dismissed the petition on February 6, 1995, and ultimately dismissed that petition without prejudice on June 5, 1996, apparently because Green had not exhausted his state remedies as to some claims. Green then filed a state petition for a writ of habeas corpus in the California Supreme Court on June 2, 1997. That court denied the petition on October 29, 1997.

Green then filed the present petition for habeas corpus in federal district court on November 5, 1998.1 The district court dismissed Green's petition with prejudice because it was untimely filed. Green appeals, claiming that AEDPA's oneyear limitation should have been tolled pursuant to 28 U.S.C. S 2244(d)(2), that his present petition was timely because it related back to his earlier dismissed petition, that the one-year limitation should have been equitably tolled, and that AEDPA's one-year limitation violates the Suspension...

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