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Scherffius v. Martel

September 8, 2008

MICHAEL E. SCHERFFIUS, PETITIONER,
v.
M. MARTEL, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court on respondents' motion to dismiss this action as barred by the one year statute of limitations. See 28 U.S.C. § 2244(d).

Section 2244(d)(1) of Title 28 of the United States Code provides: 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.

28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that "the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward" the limitations period. 28 U.S.C. § 2244(d)(2).

For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:

1. Petitioner pled no contest to sodomy by force, duress, menace and fear on a child under fourteen years of age and lewd and lascivious conduct on a child under fourteen years of age. On September 8, 2005, petitioner was sentenced to fifteen years to life in prison. (Lodged Document No. 1.)*fn1

2. Petitioner filed a timely appeal, but on February 27, 2006, the California Court of Appeal, Third Appellate District, dismissed the appeal at petitioner's request signed by petitioner on February 22, 2006. (Lodged Document Nos. 2 & 3.) The remittitur was signed February 27, 2006 and docketed on March 2, 2006. (Lodged Documents No. 3.) Petitioner did not seek direct review in the California Supreme Court.

3. On April 4, 2007,*fn2 petitioner filed a petition for writ of habeas corpus in the Shasta County Superior Court. (Lodged Document No. 4.) That petition was denied by order filed May 11, 2007. (Lodged Document No. 5.)

4. On May 22, 2007,*fn3 petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Lodged Document No. 6.) That petition was denied by order filed June 21, 2007. (Lodged Document No. 7.)

5. On July 4, 2007, petitioner filed a petition for review in the California Supreme Court.*fn4 (Lodged Document No. 8.) On December 19, 2007, the California Supreme ...


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