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Egy v. Evans

February 3, 2009

JAMES DEAN EGY, PETITIONER,
v.
MICHAEL EVANS, 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 1999 conviction for several counts of child molestation. He is serving a determinate sentence of 18 years. This action is proceeding on the original petition filed April 2, 2008. Pending before the court is respondent's June 27, 2008, motion to dismiss on grounds that this action is barred by the statute of limitations.

After carefully considering the record, the court recommends that respondent's motion be granted.

II. Motion to Dismiss

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 April 9, 2003, the California Supreme court denied petitioner's petition for direct review. Respondent's Lodged Document 6. Therefore, petitioner's conviction became final when the time for filing a petition for writ of certiorari expired 90 days later on July 8, 2003. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999). Time began to run the next day, on July 9, 2003. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is, until July 8, 2004, to file a timely federal petition, absent applicable tolling. The instant action, filed April 2, 2008, is not timely unless petitioner is entitled to statutory or equitable tolling.

Petitioner filed five state post-conviction collateral actions. The first and second habeas petitions were filed by counsel. The final three habeas petitions were filed pro se:

1. October 30, 2003: first habeas petition filed in the Sacramento County Superior Court. Respondent's Lodged Document at 5. On December 3, 2003, the Superior Court denied the ...


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