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Shukry v. Hedgpeth

October 30, 2009

MICHAEL JAMES SHUKRY, PETITIONER,
v.
ANTHONY HEDGPETH, WARDEN,*FN1 RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court on respondent's motion to dismiss this action as barred by the one year statute of limitations. See 28 U.S.C. § 2244(d).

Section 2244(d)(1) of Title 28 of the United States Code provides: 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.

28 U.S.C. § 2244(d)(1). 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" the limitations period. 28 U.S.C. § 2244(d)(2).

For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:

1. Petitioner was convicted of second degree murder and assault resulting in the death of a child under eight years old on December 16, 2003. On February 20, 2004, petitioner was sentenced to an indeterminate state prison term of twenty-five years to life.

2. On September 19, 2006, the California Court of Appeal, Third Appellate District, affirmed the conviction. The California Supreme Court denied review on January 3, 2007.

3. On December 21, 2008, petitioner filed a petition for review in the California Supreme Court. That petition was denied by order filed February 18, 2009.

4. On March 2, 2008, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court.*fn2 That petition was denied by order filed April 24, 2008.

5. On November 20, 2008, petitioner signed a petition for writ of habeas corpus filed in the California Court of Appeal for the Third Appellate District. That petition was denied by order filed December 11, 2008.

6. On December 21, 2008, petitioner signed a petition for writ of habeas corpus in the California Supreme Court. That petition was ...


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