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Campostrini v. Martel

June 25, 2009

BRUNO CAMPOSTRINI, PETITIONER,
v.
MICHAEL MARTEL, WARDEN, ET AL.,*FN1 RESPONDENTS.



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

ORDER & / FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, proceeding with appointed counsel, has filed a habeas petition pursuant to 28 U.S.C. § 2254. Petitioner, charged with seven child molesting/lewd acts counts and one-strike enhancements based on having been convicted of a serious felony in 1995, pled no contest to one count, forcible lewd act upon a child (Cal. Penal Code § 288(b)(1), and admitted enhancements under Cal. Penal Code § 667.61(a) & (d). Supplemental Points and Authorities (Supp.), pp. 1-2. Petitioner was sentenced in Butte County Superior Court to a term of 25 years to life in prison on January 13, 2003. Id., at 2; respondent's Lodged Document (Lod. Doc.) 1.

In the supplemental points and authorities, petitioner's claim is framed as a denial of due process and effective assistance of counsel when his guilty plea was entered without the ability to intelligently understand the charges against him and his counsel failed to investigate the cause. Supp., pp. 6-19.

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), 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 filed a Wende*fn2 brief on appeal to the California Court of Appeal, Third District, which appeal was subsequently abandoned by petitioner and dismissal granted on July 9, 2003. Supp., p. 3, MTD, p. 2, Lod. Docs. 2-3. Pursuant to Cal. Rules of Court, Rule 8.500 (formerly Rule 28), "[a] petition for review must be served and filed within 10 days after the Court of Appeal decision is final in that court."*fn3 Respondent is correct therefore in contending that the conviction became final for purposes of § 2244(d)(1)(A), on July 19, 2003, and the AEDPA one-year limitation period began to run one day later, on July 20, 2003. MTD, p. 3, citing Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Therefore, absent any applicable tolling, in order to be timely, the last day for filing a federal petition would have been July 19, 2004.

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, ยง 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 ...


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