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Thomas v. Yates

September 3, 2008

MICHAEL THOMAS, PETITIONER,
v.
JAMES A. YATES, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1995 conviction for shooting at an inhabited dwelling and felon in possession of a firearm. Pursuant to the Three Strikes Law, petitioner is serving a sentence of 32 years to life.

This action is proceeding on the original petition filed January 14, 2008, raising four claims. First, petitioner alleges that the sentencing court improperly imposed the upper term in violation of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007). Second, petitioner alleges that the sentencing court violated the plea agreement by imposing the third strike sentence. Third, petitioner alleges that his sentence violates California Penal Code § 654. Fourth, petitioner alleges that his appellate counsel was ineffective for losing his transcripts.

Pending before the court is respondent's March 3, 2008, motion to dismiss on grounds that this action is barred by the statute of limitations. After carefully reviewing the record, the court recommends that respondent's motion be granted.

II. Discussion

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 the exercise of due diligence.

On July 31, 1997, the California Court of Appeal affirmed petitioner's conviction.

Respondent's Lodged Document 2. Petitioner did not seek review in the California Supreme Court. Therefore, petitioner's conviction became final when the time for seeking review expired forty days later on September 9, 1997. See former Cal. Rules of Court 24, 28. Petitioner ...


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