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Harris v. Felker

October 30, 2009

TERRANCE L. HARRIS, JR. PETITIONER,
v.
TOM FELKER, WARDEN, RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 9, 2009, the undersigned ordered respondent to file and serve a response to the petition. On April 7, 2009, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed an opposition to the motion and respondent has filed a reply.*fn1

BACKGROUND

On February 23, 2004, a Sacramento County Superior Court jury convicted petitioner of first degree murder and found a firearm enhancement allegation to be true. Pursuant to that verdict, the trial court sentenced petitioner to an indeterminate term of twenty-five years to life in state prison, plus a consecutive twenty-five years to life in state prison on the firearm enhancement. On January 12, 2006, the California Court of Appeal for the Third Appellate District affirmed the judgment of conviction. On April 12, 2006, the California Supreme Court denied review. (Pet. at 2; Resp't's Lodged Docs. 1-4.)

Petitioner subsequently filed three petitions for writ of habeas corpus in state court. In this regard, on March 14, 2007, he filed a petition for writ of habeas corpus in the Sacramento County Superior Court which was denied on May 22, 2007. On June 19, 2007, he filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District which was denied on July 6, 2007. Finally, on August 8, 2007, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was denied on January 30, 2008. (Resp't's Lodged Docs. 5-10.)

On January 20, 2009, petitioner commenced this action by filing a federal petition for writ of habeas corpus.

RESPONDENT'S MOTION TO DISMISS

I. Respondent's Motion

Respondent moves to dismiss the pending petition, arguing that it is time-barred.

Specifically, respondent argues that on April 12, 2006, the California Supreme Court denied petitioner's petition for review, causing his judgment of conviction to become "final" on July 11, 2006, after the time for filing a petition for writ of certiorari expired. Respondent argues that the one-year statute of limitations for the filing a federal habeas petition began to run the following day, on July 12, 2006, and expired one year later on July 11, 2007. (Resp't's Mot. to Dismiss at 3.)

Respondent acknowledges that the proper filing of a state post-conviction application challenging a judgment of conviction tolls the one-year statute of limitations period. Respondent notes that petitioner did not file his first habeas petition in state court until 246 days of the federal statute of limitations had elapsed. Respondent concedes that petitioner is entitled to tolling for the time that his first, second, and third habeas petitions were pending in state court. (Resp't's Mot. to Dismiss at 4.)

Granting petitioner the benefit of tolling for the time that his first, second, and third habeas petitions were pending before the state courts, respondent argues that the one-year statute of limitations for the filing of a federal petition nonetheless expired on May 29, 2008. Respondent notes that petitioner did not file his federal petition pending before this court until January 20, 2009. Accordingly, respondent concludes that petitioner's federal petition for writ of habeas corpus is untimely and should be dismissed with prejudice. (Resp't's Mot. to Dismiss at 4-5.)

II. Petitioner's Opposition

In a brief opposition to respondent's motion to dismiss, petitioner argues that he is ignorant of the law and is a layman "on all accounts." He also argues that the prison law library system is inadequate and oftentimes unavailable to inmates housed on the "C" Facility at High Desert State Prison such as him. Finally, petitioner argues that his parents asked him to "hold on as long as possible" before filing a petition for writ of habeas corpus because they wanted to hire an attorney to assist him in his efforts. However, according to petitioner, due to an economic downfall, his family was never able to retain an attorney. Under these circumstances, petitioner ...


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