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Mulgrew v. McDonald

September 25, 2009

JAMES ARTHUR MULGREW, PETITIONER,
v.
M. MCDONALD, ET AL., RESPONDENTS.



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

ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 1999, petitioner plead guilty to second degree murder.

This action is proceeding on the original petition filed March 19, 2009. Petitioner alleges that at the time he plead guilty, he was not advised that restitution or a fine was part of the plea agreement. Petitioner alleges that counsel was ineffective for failing to advise him of this term of his plea agreement.

Pending before the court is respondent's May 26, 2009, motion to dismiss on grounds that this action is barred by the statute of limitations. For the following reasons, the court recommends that respondent's motion be granted.

On August 11, 2009, respondent filed a motion for an extension of time until September 11, 2009, to file a reply to petitioner's opposition. Good cause appearing, this motion is granted and the reply filed September 10, 2009, is deemed timely filed.

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 did not appeal. Therefore, his conviction became final on May 29, 1999, when the time to file an appeal expired sixty days after the March 30, 1999, sentencing. See Cal. R. Ct. 8308(a) (former Cal. R. Ct. 30.1). Petitioner had one year from May 29, 1999, to file a timely federal petition. 28 U.S.C. § 2244(d)(1)(A) (statute of limitations runs from date when judgment becomes final). The instant action is not timely unless petitioner is entitled to statutory or equitable tolling.

In his opposition to the pending motion, petitioner argues that the limitations period is governed by 28 U.S.C. § 2244(d)(1)(D), i.e. the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence. Petitioner claims that in 2007, he obtained a copy of his sentencing transcript after an Olson review. Another inmate reviewed the transcript and pointed out to petitioner that the sentencing judge had not informed him of his right to appeal. Petitioner apparently argues that because he did not know he could appeal until 2007, the statute of limitations should run from that time.

Petitioner does not claim that he did not know the factual predicate of his claim, i.e. that he did not know that a fine or restitution was part of his plea agreement, until 2007. Petitioner does not claim, for example, that he was not present at his sentencing where the terms of his plea agreement were discussed. As observed by respondent, the record indicates that petitioner was present during the sentencing proceedings. Opposition, Exhibit 1. At the sentencing hearing, the court told petitioner that he was ordered to pay restitution of $249.80 to Shirlee Linquist and $14420.80 to the Victim Witness. Id. In addition, the court told petitioner that he also owed $15,000 [sic, $1,500.00] to the Department of Corrections. Id.*fn1 Because petitioner was aware of the factual predicate of his claim at the time he plead guilty, and because he ...


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