The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner represented by counsel, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On 2/28/08, respondent's motion to dismiss (statute of limitations), filed on 12/17/07, came on for hearing. Petitioner was represented by Vincent Oliver; Brian Smiley appeared for respondent.
Petitioner's case was final long ago, and under the usually applied AEDPA statute of limitations (one year from finality of conviction), the case is hopelessly time barred. However, petitioner seeks to have applied that section of the AEDPA statute of limitations which gives an alternative start date for the limitations period: "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." 28 U.S.C. § 2241(d)(1)(C) (emphasis added). Unfortunately for petitioner, the Ninth Circuit has determined that Cunningham v. California, 547 U.S. 270, 127 S.Ct. 856 (2007) did not announce a new rule, and that all the precedent on which Cunningham was based (all of which were new rules and not made retroactive) cannot be utilized to rescue petitioner's case.
This petition was originally filed by counsel for petitioner on 8/27/07, and was transferred from the Central District in an order filed in this court on 9/24/07. Petitioner entered a guilty plea to a violation of Cal. Penal Code § 4502(a), possession of a weapon while in prison on 7/30/97, in Amador County Superior and admitted a prior felony conviction (strike) court which he had sustained as a minor; petitioner was sentenced to a term of six years, which petitioner posits resulted from petitioner's three-year sentence having been mandatorily doubled under the Three Strikes Law (Cal. Penal Code § 1170.12) Petition, p. 4. Petitioner raises as his ground for relief that use of his prior juvenile felony conviction to double his sentence under the Three Strikes Law violated his right under the Sixth and Fourteenth Amendments to a jury determination of any factor causing his sentence to exceed the statutory maximum and did not fall within Apprendi's*fn1 prior conviction exception. Petition, pp. 4-12.
Respondent moves to dismiss the petition on the ground that it was filed beyond the one-year statute of limitations set forth in 28 U.S.C. § 2244(d).
The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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 the 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 ...