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Magee v. Walker

October 14, 2009

RUNAKO MAGEE, PETITIONER,
v.
JAMES WALKER, 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 pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the original petition filed December 16, 2008. Petitioner challenges his 1999 first degree murder conviction for which he is serving a sentence of twenty-five years to life.

The petition raises one claim: denial of the right to confront witnesses. In particular, petitioner argues that the trial court erred in finding Nicole Garrott unavailable as a witness. Petitioner alleges that the prosecution did not demonstrate due diligence in attempting to locate Garrott. After determining that Garrot was unavailable, the trial court admitted Garrott's preliminary hearing testimony as well as her statements to police.

Pending before the court is respondent's June 29, 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.

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.

On May 22, 2002, the California Supreme Court denied petitioner's petition for review. Respondent's Exhibit B. Petitioner's conviction was final ninety days later on August 20, 2002. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999) (conviction is final after time for filing a petition for writ of certiorari in Supreme Court has run). Petitioner had one year from that date, i.e. until August 20, 2003, to file a timely federal petition. The instant action is not timely. 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 argues that the limitations period runs from November 27, 2007, which is the day he first learned the whereabouts of Garrott. Petitioner alleges that he made contact with Garrott on November 27, 2007, and questioned her regarding her testimony at the preliminary hearing and her failure to appear at trial.

Hearsay is admissible when the statement bears adequate "indicia of reliability" and the witness is "unavailable." Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531 (1980).*fn1 A witness is "unavailable" only if "the prosecutorial authorities have made a good-faith effort to obtain [her] presence at trial." Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318 (597).

Petitioner's arguments in the opposition are unrelated to his claim that the prosecution did not make a good faith effort to locate Garrott prior to his trial. Petitioner makes no claim that in 2007 Garrott had information regarding the prosecution's attempts to locate her prior to trial. Moreover, petitioner has not demonstrated that he, himself, used due diligence in his attempt to locate Garrott. See 28 U.S.C. § 2244(d)(1)(D) (statute of limitations runs from date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence). For these reasons, the court finds that petitioner's argument that the limitations period runs from the date he located Garrott is without merit.

28 U.S.C. ยง 2254(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 ...


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