Thursday, January 06, 2011

Lakey v. Hickman, No. 09-15940 (1-5-11)(Wallace with Thomas and Mills, Sr. D.J., C.D. Ill.). This is another AEDPA tolling issue. The 9th holds that the petition is untimely and equitable tolling is unavailable. The petitioner filed three state post-conviction challenges before he went to federal court. Alas, for him, one of those filings was pending in the California State Supreme Court for 267 days before it was dismissed as untimely. "Equitable tolling" is unavailable because of the Supremes' decision in Pace, which stated that a state finding of untimeliness would not toll the federal period. Moreover, once Pace came out, which supported the filing of shell petitions, the petitioner should have acted. Instead, he waited five months.


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