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Kirk v. Felker

January 12, 2009

JOHN MICHAEL KIRK, PETITIONER,
v.
TOM FELKER, ET AL., RESPONDENTS.



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

ORDER

Introduction

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, convicted of possession of a stolen vehicle (Cal. Pen. Code § 496d(a), on 11/04/04, was sentenced in Sacramento County Superior Court to a term of nine years. Respondent notes that petitioner was found to have sustained a prior conviction for home burglary in 1986, five prior prison term convictions for possession of heroin in 1995, possession of a dangerous weapon in 1993, petty theft with a prior in 1990 (the 1986 burglary), and possession of stolen property in 1983. Motion to Dismiss, p. 3. Petitioner challenges his 2004 conviction on two grounds: 1) due process violation when prosecutor failed to timely turn over evidence (during discovery); and 2) ineffective assistance of counsel when trial counsel failed to seek all available remedies for plaintiff. Petition, pp. 1-7.

Motion to Dismiss

Pending before the court is respondent's motion to dismiss (MTD) the petition for untimeliness pursuant to 28 U.S.C. § 2244(d), filed on 4/25/08.

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.

Petitioner timely filed an appeal to the Third District Court of Appeal, which affirmed the judgment on 5/11/06. MTD, p. 3; Lodged Document (Lodg. Doc.) 1. Petitioner's petition for review in the California Supreme Court was filed on 6/21/06, and was denied on 7/26/06. MTD, p. 3; Lodg. Doc. 2. The record therefore demonstrates that petitioner's conviction became final on 10/24/06 (MTD, p. 4), ninety days after the state supreme court denied petitioner's petition for review on direct appeal. See Cal. Rules of Court, Rule 8.308(a) (former Rule 31); Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) ("holding] that the period of'direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the [ninety-day] period within which a petitioner can file a petition for a writ of certiorari with the United States Supreme Court, whether or not the petitioner actually files such a petition.") The statute of limitations began to run the next day, on 10/25/06. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

28 U.S.C. § 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 any period of limitation under this section. However, as respondent notes, petitioner did not file any state petition for a writ of habeas corpus. MTD, pp. 3-4. Petitioner, therefore, had one year, that is, until 10/24/07, to file a timely federal petition, absent applicable tolling. Although the court docket indicates the petition was filed on 11/26/07, the undersigned accords petitioner application of the mailbox rule,*fn1 and the petition is deemed filed as of 11/17/07.

Petitioner was granted two extensions of time to file an opposition. See Orders, filed on 6/02/08, and on 7/15/08. Ultimately, petitioner filed a document entitled "request that the court grant relief from default and permission to file a belated notice of appeal." The court will deem this document to be petitioner's opposition. Within his opposition, petitioner does not dispute that he did not file any state habeas petition which could have ...


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