The opinion of the court was delivered by: Susan Illston, United States District Judge.
The petition for writ of habeas corpus is dismissed because it was not filed by the deadline under 28 U.S.C. § 2244(d).
IT IS SO ORDERED AND ADJUDGED.
Honesto Bautista Ramos, a prisoner incarcerated at the California State Prison — Sacramento, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition as untimely and Ramos has opposed the motion. For the reasons discussed below, the court will grant the motion and dismiss the petition.
Following a jury trial in Santa Clara County Superior Court, Ramos was convicted of attempted premeditated murder, assault with a semi-automatic firearm, possession of a firearm by a felon, and possession of methamphetamine. He also was found to have suffered from a prior "strike" conviction see Cal. Penal Code §§ 667(b)-(i), 1170.12, and a prior serious felony conviction see Cal. Penal Code § 667(a). On March 13, 1998 he "was sentenced to a "double life term' consecutive to 21 years in prison." Petition, Exh. G, p. 3. He did not file a notice of appeal within the sixty-day appeal period allowed under California Rule of Court 31(a).
No later than January 25, 1999, Ramos knew that an appeal had not been taken in his case. Ramos declared under penalty of perjury that the following took place when, after a few months in custody, he did not hear from his attorney or the courts: "I asked a relative, Emanuel San Juan, to contact Mr. O'Sullivan [trial counsel who had agreed to file an appeal] and obtain a copy of the notice of appeal and find out about the progress of the appeal. Emanuel San Juan told me he learned no notice of appeal was ever filed. At this point, my family began negotiating with Mr. O'Sullivan about representing me for appellate review. He demanded additional compensation for the appeal and it took time to raise enough funds. In January 1999, my family paid Mr. O'Sullivan $10,000 to represent me on appeal." Petition, Exh. D, p. 2. Two checks to O'Sullivan were dated January 25, 1999. Petition, Exh. C. O'Sullivan allegedly took the money but did not file an appeal or do anything else helpful and eventually refunded $7,500 of the fee. Id.
On June 13, 2001, Ramos filed an application for relief from default for failure to file a timely notice of appeal. His application was denied by the California Court of Appeal on July 11, 2001. Petition, Exhs. G, H. He attempted to petition for review of the denial in the California Supreme Court but that court refused to accept the petition for filing on August 13, 2001, because it was not received within the jurisdictional time limit. Petition, Exh. I.
In December 2001, Ramos filed a motion for transcripts in the Santa Clara County Superior Court for use in his upcoming habeas petition. The motion was denied on January 2, 2002. Petition, Exhs. K, L. Ramos' petition for writ of habeas corpus in "the California Supreme Court was filed on May 24 or 29, 2002, and denied on February 11, 2003. Petition, Exhs. M-P.
Ramos then filed this action. The proof of service on his federal petition was dated March 25, 2003. The petition was stamped "filed" at the court on March 27, 2003.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme ...