Friday, July 20, 2007

Hemmerle v. Schriro, No. 06-16601 (7-19-07). On the toll road to justice, just past the AEDPA turn-off, the 9th finds a gap of 33 days that halts the petition. Petitioner was convicted of 2nd degree murder in Arizona in November 1997 and begann a round of appeals and state PCRs. The first PCR alleged IAC with no supporting facts; the box was "checked." That was dismissed without action but a few weeks later, a second PCR was filed that alleged more facts (i.e. the lawyer supposedly told the petitioner to lie and failed to investigate mental illness). That eventually was denied, and the state courts refused to grant review. When petitioner came to federal court, he was found to be 33 days late on his AEDPA and the court dismissed. The 9th (O'Scannlain with Hall and Ikuta) affirmed. The fist state PCR failed to allege specififc facts, and so the second state PCR was not a bridge that permitted tolling, but was a second PCR, and thus time did not toll. Moreover, the AEDPA clock starts ticking with denial of review rather than mandate, and so that time counted. Petitioner was out of time.


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