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Osby v. Clark

January 12, 2009

JACKIE OSBY, PETITIONER,
v.
KEN CLARK, WARDEN RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION RECOMMENDING ACTION BE DISMISSED FOR FAILURE TO STATE A COGNIZABLE CLAIM [Doc. 21]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner filed the instant petition on July 16, 2008, in the United States District Court for the Central District of California. (Court Doc. 1.) The petition was transferred to this Court on September 30, 2008. (Court Doc. 10.)

On October 8, 2008, the undersigned issued a Findings and Recommendation recommending that the petition be dismissed, without prejudice, as a successive petition. (Court Doc. 13.) On October 27, 2008, Petitioner filed objections to the Recommendation. (Court Doc. 17.) In his objections, Petitioner clarified that he wished to challenge the Board of Parole Hearings (BPH) denial of parole in 2007. (Id.) On November 25, 2008, the Court vacated the Findings and Recommendation and directed Petitioner to submit an amended petition clarifying his claim(s) for relief.

Petitioner filed an amended petition on January 5, 2009. (Court Doc. 21.) Petitioner indicates that he was convicted of second degree murder with use of a firearm and street gang enhancement in the Kern County Superior Court, and sentenced to 19 years to life. (Amended Petition, at 1.) Petitioner contends that he was sentenced to a fixed term of 19 years and he was promised by the sentencing court that he would be housed in the California Youth Authority (CYA) until his 25th birthday, and attaches an abstract of judgment. Petitioner contends that because he was not housed in the CYA immediately following his sentence, he requests to withdraw his plea.

DISCUSSION

A. Procedural Ground for Review

Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the face of the petition . . . that the petition is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

B. Limitation Period for Filing a Petition for Writ of Habeas Corpus

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The instant petition was filed on October 14, 2004, and thus, it is subject to the provisions of the AEDPA.

The AEDPA imposes a one year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, Section 2244, subdivision (d) reads:

(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 ...


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