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HERRERA v. BUTLER

July 22, 2004.

THEODORE HERRERA SR., Plaintiff,
v.
D.K. BUTLER, Defendant.



The opinion of the court was delivered by: VAUGHN WALKER, District Judge

JUDGMENT IN A CIVIL CASE

() 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

  (Doc # 7)

  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 an opposition.

  BACKGROUND

  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.

  DISCUSSION

  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 ...


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