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Buckner v. Felker

March 6, 2009

BOBBY DEAN BUCKNER, PETITIONER,
v.
T. FELKER, WARDEN, RESPONDENT.



ORDER

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2006 judgment of conviction entered in the Sacramento County Superior Court. Petitioner has paid the filing fee. Pending before the court is petitioner's motion for a stay and abeyance.

PETITIONER'S MOTION FOR A STAY AND ABEYANCE

In his motion, petitioner explains that the conviction which he is seeking to challenge became final in February of 2008, and that he filed his first state habeas petition in the Sacramento County Superior Court in August 2008. Petitioner alleges that on direct appeal in the state courts he exhausted all of the claims set forth in his federal petition, except claims three and four. Petitioner has also expressed his concern that the one-year federal statute of limitations may expire if the court does not stay this action because state courts need several months to review state habeas petitions. (Mot. for Stay & Abey. at 1-2.)

THE AEDPA STATUTE OF LIMITATIONS

I. The AEDPA

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"). AEDPA amended 28 U.S.C. § 2244 by adding the following provision:

(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.

(2) 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 subsection.

The AEDPA's one-year statute of limitations applies to all federal habeas corpus petitions filed after the statute was enacted and therefore applies to the pending petition in this case. ...


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