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Lavirgne v. Yates

March 16, 2009

WINFRED HOWARD LAVIRGNE, PETITIONER,
v.
JAMES A. YATES, WARDEN, RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.

Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

PRELIMINARY SCREENING

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ." Rule 4, Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus at several stages of a case, including "summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record."

Moreover, the Ninth Circuit has held that a district court may dismiss sua sponte a habeas petition on the grounds that it is untimely under the statute of limitations so long as the court provides the petitioner adequate notice of its intent to dismiss and an opportunity to respond. See Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir. 2001). These findings and recommendations are intended to notify petitioner of the court's intention to dismiss the instant petition on the ground that it is untimely under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). If petitioner desires to respond and demonstrate to the court that he has filed this action within the applicable statute of limitations or is eligible for statutory or equitable tolling of the limitations period, he may do so by filing objections to these findings and recommendations.

BACKGROUND

On March 9, 2009, petitioner commenced this action by filing a petition for writ of habeas corpus, challenging a judgment of conviction entered against him in the Sacramento County Superior Court in 2003. According to the petition, on April 24, 2003, petitioner plead guilty to assault with a firearm pursuant to a plea bargain. On May 23, 2003, he was sentenced to thirty-one years in state prison. (Pet. at 2 & Attachs.)

Petitioner did not appeal his conviction. Several years later, however, he filed a petition for writ of habeas corpus in the Sacramento County Superior Court. On May 19, 2008, the court rejected that petition as untimely. Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court. On November 19, 2008, that court summarily denied relief. (Pet. at 3-4 & Attachs.) Petitioner alleges that his habeas petition before this court is not untimely and argues that even if it is, the court should reach the merits of his sole claim that his state court sentence violates Cunningham v. California, 549 U.S. 270 (2007) (Id. at 8-9.)

ANALYSIS

I. The AEDPA Statute of Limitations

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 ...


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