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Martinez v. Sisto

July 27, 2009

ANTHONY MARTINEZ, PETITIONER,
v.
D. K. SISTO, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2006 decision by the Governor of California to deny him parole. This matter is before the court on respondent's motion to dismiss. Respondent contends that petitioner's claims are barred by the statute of limitations and unexhausted and, therefore, that the petition must be dismissed.

I. Statute of Limitations

Section 2244(d) of Title 28 of the United States Court contains a statute of limitations for filing a habeas petition in federal court:

(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.

(2) 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 under this subsection.

28 U.S.C. § 2244. Where, as here, the petitioner challenges an administrative decision to deny parole, the limitation period is governed by the provisions of 28 U.S.C. § 2244(d)(1)(D). See Redd v. McGrath, 343 F.3d 1077 (9th Cir. 2003). The following facts are relevant to the statute of limitations analysis.

1. On June 30, 2006, petitioner received notice of the Governor's decision to deny him parole.

2. On June 6, 2007, petitioner signed and dated a petition for writ of habeas corpus directed to the California Superior Court in Riverside County. The petition was file stamped in that court on June 11, 2007. It was denied on July 7, 2007.

3. On July 16, 2007, petitioner signed and dated a motion for reconsideration by the Riverside County Superior Court. The motion was denied on August 27, 2007. The copy of the order served on petitioner was returned to the superior court undelivered because the address did not include petitioner's CDC number or housing number. Petitioner did not receive a copy of the order denying the motion for reconsideration.

4. On October 4, 2007, petitioner filed a petition for writ of mandate in the California Court of Appeal. By order filed October 17, 2007, that court construed the petition for writ of mandate as a petition for writ of habeas corpus and denied the ...


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