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Wilson v. Marshall

August 4, 2008

THEODORE O'DELL WILSON, PETITIONER,
v.
JOHN MARSHALL, WARDEN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation

ORDER

Theodore O'Dell Wilson, a state prisoner, filed an application for habeas corpus relief pursuant to 28 U.S.C. § 2254(a) on January 23, 2006, based on alleged violations of his federal constitutional rights.

Respondent, John Marshall, Warden of the California Men's Colony in San Luis Obispo, California, filed a motion to dismiss Petitioner's application on December 28, 2007. Respondent maintains that Mr. Wilson's petition should be dismissed without consideration of its merits because it was filed beyond the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). In his response in opposition to the motion to dismiss, Petitioner maintains that the one-year statute of limitations was statutorily tolled by properly filed state post-conviction petitions. He also contends that his application was timely because he is entitled to equitable tolling of the limitations statute. As explained below, the Court concludes that Petitioner's application must be dismissed because it is time barred.

I.

A.

Petitioner was convicted in the Fresno County Superior Court of inflicting corporal injury on his spouse/cohabitant (count one), felony false imprisonment by force (count two), and child endangerment (count three), in violation of Cal. Pen. Code, §§ 273.5(a), 236, and 273a(b), respectively. The jury found true Petitioner personally used a firearm during the commission of the first two counts. On February 27, 2002, the trial court sentenced Petitioner to a term of seven years in state prison.

Petitioner filed a direct appeal from the trial court's judgment with the California Court of Appeal for the Fifth Appellate District on April 12, 2002. That court affirmed the judgment on November 20, 2003. The California Supreme Court denied review on January 28, 2004.

II.

A.

Petitioner filed a petition for a writ of habeas corpus in the Fresno County Superior Court on January 31, 2005. That court denied the petition on February 8, 2005.

B.

On March 28, 2005, Petitioner filed an original petition for habeas corpus relief in the California Court of Appeal for the Fifth Appellate District. The petition was denied without comment on April 28, 2005.

C.

Petitioner filed a successive petition for a writ of habeas corpus in the California Supreme Court on June 13, 2005. It was denied ...


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