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Fernando v. Marshall

June 24, 2009

LORETO L. FERNANDO, PETITIONER,
v.
JOHN MARSHALL, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, a state prisoner proceeding with appointed counsel, has filed a petition pursuant to 28 U.S.C. § 2254. Petitioner pled guilty to voluntary manslaughter in Solano County Superior Court, and convicted on November 3, 2005, and, in December 2005, was sentenced to a term of twelve years in prison. Amended Petition (AP), p. 1; respondent's Exhibit 1. The grounds for his amended petition are: 1) Sixth Amendment right to trial by jury violated when judge imposed upper term for voluntary manslaughter (Cal. Penal Code § 192 (a); 2) his Sixth Amendment rights were also violated when the judge, not a jury, imposed a double strike enhancement and petitioner had no prior conviction record. AP, pp. 4-6.

Motion to Dismiss

Respondent moves for dismissal on the ground that the petition is barred by the one-year AEPDA statute of limitations. Motion to Dismiss (MTD), pp. 1-4.

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.

Petitioner, convicted of voluntary manslaughter, was sentenced on December 16, 2005.*fn1 Petition, p. 1; MTD, p. 1, respondent's (Resp.) Exhibit (Exh.) 1. No party disputes that petitioner did not appeal the sentence imposed. Respondent correctly contends that the period for direct review expired sixty days thereafter, on February 14, 2006. MTD, p. 2, citing Cal. R. Ct., Rule 8.308(a). Respondent maintains that the AEPDA one-year statute of limitations began to run the next day and expired, absent applicable tolling, on February 14, 2007. MTD, at p. 3, citing Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

Petitioner filed three state court habeas petitions, according to respondent. MTD, p. 2. On March 23, 2007,*fn2 petitioner filed a habeas petition in Solano County Superior Court, which was denied on June 4, 2007. Resp. Exhs. 2-3. His July 12, 2007, petition to the California Court of Appeal was denied on July 19, 2007. Resp. Exhs. 4-5. Petitioner filed a petition in the California Supreme Court on or about August 6, 2007, which was denied on September 19, 2007. Resp. Exhs. 6-7. Although this matter now proceeds on an amended petition, it was originally filed on September 4, 2008, in the Fresno Division, and subsequently transferred to this court. See Order, filed in this court's docket on November 3, 2008.

Section 2244(d)(2) provides that 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. However, § 2244(d)(2) can only pause a clock not yet fully run; it cannot "revive" the limitation period once it has run (i.e., restart the clock to zero). Thus, a state court habeas petition filed beyond the expiration of AEDPA's statute of limitations does not toll the limitation period under § 2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001). Respondent is correct that the AEDPA deadline had run after February 14, 2007; since the court has found that petitioner's first state habeas petition, even applying the mailbox rule, was not filed until March 23, 2007, respondent is also correct that it was filed more than a month beyond the expiration of the AEDPA one-year statutory deadline. Petitioner's state ...


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