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Davis v. Scribner

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 1, 2009

VICTOR SAMUEL DAVIS, PETITIONER,
v.
L. E. SCRIBNER, ET AL., RESPONDENTS.

FINDINGS AND RECOMMENDATIONS

Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. He is currently serving a sentence of life imprisonment without parole for crimes including murder.

Respondents have filed a motion in which they assert this matter should be dismissed because it is time-barred.

Title 28 U.S.C. § 2244(d)(1) provides:

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 February 7, 2007, the California Supreme Court denied review of the California Court of Appeal's opinion affirming petitioner's convictions and sentences. June 2, 2008 Am. Pet. at 38.*fn1 Therefore, the limitations period applicable to this action began to run under § 2244(d)(1)(A) on May 9, 2007, when time expired for petitioner to file a petition for writ of certiorari in the United States Supreme Court. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) ("We hold that the period of 'direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition."). This action was commenced sometime before May 8, 2008, the date petitioner's original habeas petition was filed, when petitioner gave his petition to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 270 (1988). Therefore, this action is timely.*fn2

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Respondents' motion to dismiss (#10) be denied; and

2. Respondents be ordered to file their answer within thirty days.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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