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Cruz v. Clark

March 31, 2009

RICHARD ANTHONY CRUZ, PETITIONER,
v.
KEN CLARK, 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 1990 conviction for murder. He is serving a sentence of twenty-six years to life. This action is proceeding on the original petition filed July 11, 2008. Pending before the court is respondent's September 4, 2008, motion to dismiss on grounds that this action is barred by the statute of limitations and that five of petitioner's claims failed to present proper federal questions.

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

II. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which effected amendments to the federal habeas statutes, applies to the instant petition because petitioner filed it after AEDPA's effective date of April 24, 1996. 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 May 20 1992, the California Supreme court denied petitioner's petition for direct review. Respondent's Lodged Document 4. Therefore, petitioner's conviction became final when the time for filing a petition for writ of certiorari expired 90 days later on August 18, 1992. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Since petitioner's judgment of conviction became final prior to the enactment of the AEDPA on April 24, 1996, the statute of limitations started running the day after the AEDPA's effective date and expired on April 24, 1997. See Bryant v. Arizona Atty. Gen., 499 F.3d 1056, 1058 (9th Cir. 2007). The instant action, filed July 11, 2008, is not timely unless petitioner is entitled to statutory or equitable tolling.

Petitioner filed three state post-conviction collateral actions:

1. June 26, 2007: first habeas petition filed in the Sacramento County Superior Court. Respondent's Lodged Document 5. On August 2, 2007, the Superior Court denied the first petition with a ...


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