The opinion of the court was delivered by: VAUGHN WALKER, District Judge
() Jury Verdict. This action came before the Court for a
trial by jury. The issues have been tried and the jury has
rendered its verdict.
(X) Decision by Court. This action came to trial or hearing
before the Court. The issues have been tried or heard and a
decision has been rendered.
IT IS SO ORDERED AND ADJUDGED that respondent's motion to
dismiss the petition as untimely is GRANTED, and judgment if
hereby entered accordingly.
ORDER GRANTING MOTION TO DISMISS
Petitioner, a state prisoner incarcerated at Folsom State
Prison, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Per
order filed on February 2, 2004, the court found that the claims
in the petition appeared cognizable under § 2254 and ordered
respondent to show cause why a writ of habeas corpus should not
be granted. Respondent instead filed a motion to dismiss the
petition as untimely under 28 U.S.C. § 2244(d). Petitioner has filed
Petitioner was convicted by a jury in the Superior Court of the
State of California in and for the County of Santa Clara as an
aider and abettor of robbery while armed with a handgun. It was
also found that petitioner had suffered two prior serious felony
convictions and, on January 9, 1999, he was sentenced to 31 years
to life pursuant to California's Three Strikes Law. On December 13, 2000, the California Court of Appeal affirmed
the judgment and denied a petition for a writ of habeas corpus.
On March 21, 2001, the Supreme Court of California denied
review of both decisions of the court of appeal.
On January 15, 2002, petitioner filed a federal petition for a
writ of habeas corpus in this court. But because he had a
petition of error coram nobis pending in state superior court at
the time he filed the federal petition, this court (Chesney, J)
promptly dismissed the federal petition without prejudice to
refiling "once all state court post-conviction challenges to his
conviction have been completed." Herrera v. Lamarque, No C
02-0243 MMC (PR), slip op at 1-2 (ND Cal Feb 20, 2002) (order).
On September 24, 2003, petitioner filed the instant federal
petition for a writ of habeas corpus alleging that his last state
court post-conviction challenge was denied on January 23, 2002.
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") became law on April 24, 1996 and imposed for the first
time a statute of limitation 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 Court and
made retroactive to cases on collateral review; or (4) the
factual predicate of the claim could have been discovered through ...