The opinion of the court was delivered by: Huff, Chief Judge.
Order Adopting Report and Recommendation of Magistrate Judge;
Denying Petition for Writ of Habeas Corpus
Petitioner in the above-entitled matter filed a petition for
writ of habeas corpus under 28 U.S.C. § 2254. Respondent
opposed the petition. On November 19, 1999, the magistrate judge
in this matter issued a Report and Recommendation, recommending
the petition be denied. On December 21, 1999, petitioner filed
objections to the Report and Recommendation. On February 11,
1999, respondent filed a reply to petitioner's objections. After
fully considering the papers filed and the law, the court adopts
the Report and Recommendation issued by the magistrate judge and
denies the petition for writ of habeas corpus.
Petitioner was convicted of second degree murder by a jury
verdict on September 11, 1979, in the Superior Court for the
County of San Diego. On November 2, 1979, petitioner was
sentenced to fifteen years to life. On December 12, 1979,
petitioner filed a notice of appeal with the California Court of
Appeal. That court affirmed the judgment on April 21, 1981. On
May 21, 1981, petitioner filed a petition for hearing with the
California Supreme court. That petition was denied on July 8,
On July 29, 1997, petition mailed his petition for a writ of
habeas corpus to the California Court of Appeal. That petition
was denied on August 19, 1997. Petitioner mailed his petition to
the California Supreme Court on September 16, 1997. He received
notice of the Supreme Court's denial of his petition on March 30,
Petitioner incorrectly mailed the instant habeas corpus
petition to the United States District Court for the Eastern
District of California on March 31, 1998. The petition was
transferred to this court on May 4, 1998. On October 28, 1998,
the court ordered additional briefing from respondent on the
application of the "mailbox rule" to the petition. On November
18, 1998, the magistrate judge in this matter issued a Report and
Recommendation, recommending that Hood's section 2254 petition
for writ of habeas corpus be dismissed as time-barred, pursuant
to 28 U.S.C. § 2244(d), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No.
104-132, 110 Stat. 1214 (eff.Apr. 24, 1996).
Under the amendments to habeas corpus law effected by the
AEDPA, state prisoners had at least until April 24, 1997 to file
section 2254 motions challenging their conviction or sentence if
the challenge arose prior to the enactment of the AEDPA.
Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283,
1287 (9th Cir. 1997), overruled in part on other grounds by
Calderon v. United States District Court (Kelly), 163 F.3d 530
(9th Cir. 1998) (en banc). . The AEDPA amended 28 U.S.C. § 2244
by imposing a one-year statute of limitations for the filing
of a habeas corpus petition seeking relief from a state court
conviction, which runs from "the date on which the judgment
became final by the conclusion of direct review or the expiration
of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
In pertinent part, Section 2244(d)(1) provides
(d)(1) A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a
State court. The limitation period shall run from
the latest of —
(A) the date on which the judgment became final by
conclusion of direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing
by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). The AEDPA's time limit was intended to
halt the unacceptable delay which has developed in the federal
habeas process. Beeler, 128 F.3d at 1288 (9th Cir. 1997).
Because petitioner Hood's conviction became final before the
AEDPA's enactment, the one-year statute of limitations began to
run on the AEDPA's effective date of April 24, 1996, giving
petitioner until April 23, 1997, to file a federal petition for
habeas corpus. However, the AEDPA also requires that "[t]he time
during which a properly filed application for State
post-conviction or other collateral review . . . is pending shall
not be counted toward any period of limitation under this
28 U.S.C. § 2244(d)(2); see Ashmus v. Calderon, 977 F. Supp. 987,
992 (N.D.Cal. 1997).
Additionally, this court will apply the "mailbox rule"
established in Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct.
2379, 101 L.Ed.2d 245 (1988), to habeas corpus petitions filed
under 28 U.S.C. § 2254. See, e.g., James v. Madison Street
Jail, 122 F.3d 27 (9th Cir. 1997) (applying Houston rule to
the filing of trust account statements); Schroeder v. McDonald,
55 F.3d 454, 459 (9th Cir. 1995) (applying Houston rule to the
service of a Rule 59(e) motion); Caldwell v. Amend,
30 F.3d 1199, 1201 (9th Cir. 1994) (applying the Houston rule to the
filing of a Rule 50(b) motion); Faile v. Upjohn Co.,
988 F.2d 985, 988-89 (9th Cir. 1993) (applying the Houston rule to the
service of discovery responses). The "mailbox rule" provides that
a prisoners' notice of appeal is considered filed when ...