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Perez v. Adams

April 15, 2009

JOSE PEREZ, PETITIONER,
v.
DERRELL. G. ADAMS, 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 with appointed counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his December 5, 2001, conviction, after bench trial, for failing to register as a sex offender; also found true were two prior serious felony conviction allegations in case number SF08314A. On December 13, 2001, a jury convicted petitioner of one count of corporal injury on a cohabitant, three counts of assault with a deadly weapon and three counts of making criminal threats in case number SF082861A. In these apparently consolidated cases, petitioner was sentenced on March 19, 2002, to 80 years to life. This action is proceeding on an amended petition filed July 22, 2008. Pending before the court is respondent's September 22, 2008, motion to dismiss on grounds that this action is barred by the statute of limitations.*fn1

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 September 24, 2003, the California Supreme court denied petitioner's petition for direct review. Respondent's Lodged Document #3, 4. Therefore, petitioner's conviction became final when the time for filing a petition for writ of certiorari expired 90 days later on December 23, 2003. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999). Time began to run the next day, on December 24, 2003. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.2001).

Petitioner had one year, that is, until December 23, 2004, to file a timely federal petition, absent applicable tolling. The instant action, mailed June 26, 2007,*fn2 is not timely unless ...


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