Harmon v. Miller-Stout

104 F. App'x 671

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 13, 2004
• Docket: No. 03-35684
• Status: Published

Opinion

MEMORANDUM

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Washington state prisoner Frank R. Harmon appeals the district court’s dismissal with prejudice of his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

The record demonstrates that Harmon became aware of the factual predicate for his federal claims at least as early as February 1989, when the Department of Corrections notified him that the soonest he could expect to be released was 2024. Thus, absent tolling, the Antiterrorism and Effective Death Penalty Act’s one-year statute of limitations for filing a federal habeas petition expired on April 24, 1997. See Patterson v. Stewart, 251 F.3d 1243, 1245-1246 (9th Cir.2001).

Because Harmon did not file his first state habeas petition until well after April 24, 1997, that petition had no statutory tolling effect under 28 U.S.C. § 2244(d)(2). See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001), cert. denied, 538 U.S. 949, 123 S.Ct. 1627, 155 L.Ed.2d 492 (2003). Thus, the attorney negligence alleged with respect to the state petition is moot.

Accordingly, Harmon’s 28 U.S.C. § 2254 petition, filed on December 20, 2002, was untimely.

Appellee’s Motion to File Appellee’s Supplemental Excerpts of Record, filed on January 29, 2004, is granted. The Clerk is directed to file the supplemental excerpts of record lodged on January 29, 2004.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.