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Frazier v. Hedgepeth

September 11, 2008

RODNEY C. FRAZIER, PETITIONER,
v.
TONY HEDGEPETH, WARDEN, RESPONDENT.



FINDINGS & 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. In 1995, petitioner was convicted of first degree murder, and the jury found petitioner personally used a firearm in the commission of the murder. Petitioner was sentenced to twenty-nine years to life in prison, which included four years for the weapons enhancement. Respondent has moved 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 8 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. In January 1995, petitioner was sentenced to twenty-nine years to life in prison.

2. On May 22, 1995, petitioner appealed his conviction*fn1 and on September 11, 1996, the California Court of Appeal, Third Appellate District, affirmed the conviction. (Lodged Document 1.)*fn2

3. On May 12, 1996, petitioner filed a petition for writ of habeas corpus in the Court of Appeal, Third Appellate District.*fn3 Lodged Document 2. That petition was denied by order filed September 30, 1996. Lodged Document 2.

4. On October 21, 1996,*fn4 petitioner filed a petition for review*fn5 in the California Supreme Court. On November 26, 1996, that petition was denied without comment. Lodged Document 3.

5. On January 8, 2008, petitioner filed the instant federal habeas corpus petition.*fn6

A conviction is final for the purposes of the AEDPA statute of limitations at the expiration of the ninety day period for seeking certiorari to the United States Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). In the instant case, the California Supreme Court denied review on November 26, 1996. (Lodged Document 3.) The ninety day period for seeking certiorari ended on February 24, 1997. Thus, the statute of limitations began to run on February 25, 1997, and ran out on February 25, 1998, absent ...


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