Bowen v. Roe, No. 98-56308

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtCYNTHIA HOLCOMB HALL
Parties(9th Cir. 1999) MICHAEL ALLEN BOWEN, Petitioner-Appellant, v. ERNEST ROE, Warden; CALIFORNIA STATE ATTORNEY GENERAL, Respondents-Appellees
Decision Date04 August 1999
Docket NumberNo. 98-56308

Page 1157

188 F.3d 1157 (9th Cir. 1999)
MICHAEL ALLEN BOWEN, Petitioner-Appellant,
v.
ERNEST ROE, Warden; CALIFORNIA STATE ATTORNEY GENERAL, Respondents-Appellees.
No. 98-56308
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Submitted August 4, 19991 Pasadena, California
Filed August 30, 1999

Michael Allen Bowen, Lancaster, California, in Pro Per, for the petitioner-appellant.

Page 1158

Steven T. Oetting, Deputy Attorney General, San Diego, California, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California; Robert J. Timlin, District Judge, Presiding. D.C. No. CV-98-00045-RT-EE.

Before: Cynthia Holcomb Hall, Thomas G. Nelson, Circuit Judges, and James Ware,2 District Judge.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Michael Allen Bowen appeals from the district court's order dismissing as untimely under 28 U.S.C. S 2244(d)(1)(A) his 28 U.S.C. S 2254 habeas petition. We have jurisdiction under 28 U.S.C. S 2253(a), and we reverse and remand.

FACTUAL BACKGROUND

Michael Allen Bowen ("Bowen") was convicted in California state court of possession of heroin in state prison and possession of drug paraphernalia--a syringe--in state prison. Because Bowen had two prior burglary convictions that were characterized as "strikes" under California Penal Code section 667(b)-(i), the state court sentenced him to two concurrent terms of twenty-five years to life in prison. Bowen appealed his conviction to the California Court of Appeal, claiming (1) he had not possessed a useable quantity of heroin, (2) the trial court failed to sua sponte give CALJIC No. 2.72, (3) the trial court should have exercised its discretion to strike the prior convictions, (4) the prior convictions did not qualify as "strikes," and (5) his sentence was cruel and unusual punishment. The appellate court affirmed Bowen's conviction. Bowen then filed a petition for review in the California Supreme Court, raising the same five issues he had raised in the state court of appeal. On January 22, 1997, the California Supreme Court denied without prejudice Bowen's petition for review. Bowen did not file a petition for a writ of certiorari from the United States Supreme Court.

On February 10, 1998, approximately thirteen months after the California Supreme Court had denied Bowen's petition for review, Bowen filed a 28 U.S.C. S 2254 habeas petition in the District Court for the Central District of California. Bowen raised the same five issues in his federal habeas petition that he had raised on direct appeal in the state courts. On June 9, 1998, the district court dismissed Bowen's habeas petition as untimely under the one-year limitations period of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. S 2244(d)(1)(A) (Supp. 1999), because Bowen had filed his petition more than one year after January 22, 1997, the date on which the California Supreme Court denied his petition for review.

On June 26, 1998, Bowen filed a petition for the issuance of a certificate of probable cause, claiming that his sentence was cruel and unusual punishment. Bowen, however, did not challenge the district court's dismissal of his habeas petition as untimely. The district court granted a certificate of appealability, but limited the issue on appeal to whether Bowen's habeas petition had been timely filed under 28 U.S.C. S 2244(d)(1)(A).

DISCUSSION

The issue certified for appeal effectively asks: When a habeas petitioner has sought direct review of a judgment of conviction in the highest state court, but thereafter does not file a petition for a writ of certiorari from the United States Supreme Court, does the AEDPA's one-year limitations period begin to run on (1) the date the state court enters its judgment or (2) ninety days later, when the period within which the...

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1076 practice notes
  • Reynolds v. Cambra, No. CV977048CBMAJW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 9, 2001
    ...for purposes of the AEDPA on April 3, 1996 — ninety days after the California Supreme Court denied his petition for review. Bowen v. Roe, 188 F.3d 1157, 1158-1159 (9th Cir.1999); see also Holman v. Gilmore, 126 F.3d 876, 880 (7th Cir.1997) (explaining that a decision is "final" when the def......
  • Henry v. Benov, Case No.: 1:13-cv-00714-JLT
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 22, 2013
    ...period for seeking review in the United States Supreme Court expired. Barefoot v. Estelle, 463 U.S. 880, 887 (1983); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999); Smith v. Bowersox, 159 F.3d 345, 347 (8th Cir.1998). Petitioner would then have one year from the following day, i.e., Octob......
  • Penton v. Kernan, No. 06cv233 WQH (PCL).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • December 20, 2007
    ...conviction became final on March 18, 2006, ninety days after the California Supreme Court denied Petitioner's petition. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999). Petitioner was sentenced to several upper terms as Page 1051 result of the conviction after the sentencing judge foun......
  • Kidwell v. Ryan, No. CV-13-0770-TUC-BGM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • August 10, 2016
    ...expiration of the ninety (90) day period to petition for a writ of certiorari from the Supreme Court of the United States. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). On January 7, 2009, the Arizona Supreme Court denied review of Petitioner's direct appeal. See Answer (Doc. 16), Ariz......
  • Request a trial to view additional results
1076 cases
  • Reynolds v. Cambra, No. CV977048CBMAJW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 9, 2001
    ...for purposes of the AEDPA on April 3, 1996 — ninety days after the California Supreme Court denied his petition for review. Bowen v. Roe, 188 F.3d 1157, 1158-1159 (9th Cir.1999); see also Holman v. Gilmore, 126 F.3d 876, 880 (7th Cir.1997) (explaining that a decision is "final" when the def......
  • Henry v. Benov, Case No.: 1:13-cv-00714-JLT
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 22, 2013
    ...period for seeking review in the United States Supreme Court expired. Barefoot v. Estelle, 463 U.S. 880, 887 (1983); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999); Smith v. Bowersox, 159 F.3d 345, 347 (8th Cir.1998). Petitioner would then have one year from the following day, i.e., Octob......
  • Penton v. Kernan, No. 06cv233 WQH (PCL).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • December 20, 2007
    ...conviction became final on March 18, 2006, ninety days after the California Supreme Court denied Petitioner's petition. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999). Petitioner was sentenced to several upper terms as Page 1051 result of the conviction after the sentencing judge foun......
  • Kidwell v. Ryan, No. CV-13-0770-TUC-BGM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • August 10, 2016
    ...expiration of the ninety (90) day period to petition for a writ of certiorari from the Supreme Court of the United States. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). On January 7, 2009, the Arizona Supreme Court denied review of Petitioner's direct appeal. See Answer (Doc. 16), Ariz......
  • Request a trial to view additional results

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