Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Garcia v. Clark

June 25, 2009

RAYMOND LUIS GARCIA, 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

Introduction

Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254. Petitioner, charged with numerous sex-related offenses involving a minor, pled guilty in 2004 in San Joaquin County Superior Court to various counts and was sentenced to an indeterminate term of 15 years to life, plus a determinate sentence of 4 years. Petition, p. 1; Motion to Dismiss (MTD), Lodged Document (Lod. Doc. 1).*fn1 Petitioner raises the following grounds: 1) involuntary guilty plea; 2) double jeopardy; 3) ineffective assistance of counsel.*fn2

Motion to Dismiss

Respondent moves for dismissal on the ground that the petition is barred by the one-year AEPDA statute of limitations. MTD, p. 1.

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 pled guilty and was convicted on October 5, 2004. Petition, p. 1; MTD,

p. 1, Lod. Doc. 1. Petitioner did not timely appeal the sentence imposed on November 9, 2004. Respondent correctly contends that the period for direct review expired sixty days thereafter, on January 8, 2005. MTD, pp. 2-3, citing Cal. R. Ct., Rule 8.308, Lod. Doc. 1. As respondent observes, the AEPDA one-year statute of limitations began to run the next day and expired, absent applicable tolling, on January 8, 2006. Id., at 3, citing Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Respondent notes that petitioner belatedly sought to appeal, on May 16, 2006,*fn3 more than a year after expiration of the time to do so, and sought to appeal to the superior court, which notice of appeal was found to be both untimely and inoperable. MTD, p. 1, Lod. Doc. 2.

Petitioner filed the first of his two state habeas petitions on September 15, 2006. MTD, p. 2, Lod. Doc. 3. This petition, filed in the Third District Court of Appeal, was denied on September 28, 2006. Lod. Doc. 4. The second petition, filed in the California Supreme Court, on November 3, 2006, was denied on May 9, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.