The opinion of the court was delivered by: Ronald M. Whyte United States District Judge
ORDER DENYING RESPONDENT'S MOTION TO DISMISS; FURTHER SCHEDULING ORDER (Docket No. 17)
Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 27, 2006, the court granted petitioner's motion to stay this action while he exhausted his remaining claims in state court. On November 29, 2006, the court reopened the instant habeas action and issued an order to show cause to respondent as to why the amended petition should not be granted. Respondent was served with a copy of the court's order to show cause on May 27, 2007. Respondent has filed a motion to dismiss the amended petition as untimely. The court granted petitioner's applications for extensions of time to file an opposition to the motion to dismiss. Petitioner filed an opposition on November 5, 2007.
Although given the opportunity to do so, respondent did not file a reply. Based upon the papers submitted, the court DENIES respondent's motion to dismiss the petition as untimely.
The court issues a further scheduling order as set forth below.
On March 1, 2002, a Contra Costa Superior Court jury convicted petitioner of second degree murder (Cal. Penal Code § 187), gross vehicular manslaughter (Cal. Vehicle Code § 191.5(a)), hit and run causing death or permanent serious injury (Cal. Vehicle Code § 20001(a), (b)(2)), misdemeanor driving under the influence of alcohol with a prior conviction for driving under the influence (Cal. Vehicle Code § 23152(a)), and driving with a blood alcohol level of .08 or more (Cal. Vehicle Code § 23152(b)). Amended Petition, Ex. D (Petition for Review) at 3.
With an enhancement for his prior prison term, petitioner was sentenced to a term of fifteen 10 years-to-life in state prison on June 14, 2002. Id. at 4. On July 30, 2003, the state appellate court affirmed the conviction and sentence. On the same day, the appellate court denied petitioner's state habeas petition in a separate order. Id., Ex. E Attachments. The state supreme court denied 13 a petition for review on October 29, 2003. Id.
On December 2, 2003, petitioner filed a habeas petition in the state supreme court, which was denied on September 29, 2004, in an order which stated in its entirety: "Petition for writ of habeas corpus denied (See In re Clark (1993) 5 Cal.4th 750; In Re Lindley (1947) 29 Cal. 2d 709; In Re Dixon (1953) 41 Cal. 2d 756.) George, C.J., was absent and did not participate."
Resp. Mot., Ex. 1. On September 9, 2005, petitioner filed a habeas petition in the superior court, 19 which was denied on October 31, 2005. Resp. Mot., Ex. 2; Amended Petition, Ex. B.
Petitioner filed a federal habeas petition and a motion to hold the petition in abeyance on September 27, 2005. On September 27, 2006, the court granted petitioner's motion to stay this action while he exhausted his remaining claims in state court. During this time, petitioner filed a 23 habeas petition in the state supreme court on December 21, 2005, which was denied on September 13, 2006. Amended Petition, Ex. C. On October 4, 2006, petitioner filed an amended federal petition in this court.
Respondent moves the court to dismiss the instant petition as untimely. 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 limitations on petitions for a writ of habeas corpus filed by state prisoners. Under AEDPA, 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 the exercise of due diligence. 28 U.S.C. § 2244(d)(1).
The one-year period generally will run from "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). "Direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not ...