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Luu v. Singh

November 6, 2009

QUOC XUONG LUU, PETITIONER,
v.
V. SINGH, ET AL, RESPONDENTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner, currently confined at the Solano County Jail, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.

Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

PRELIMINARY SCREENING

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ." Rule 4, Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus at several stages of a case, including "summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record."

Moreover, the United States Court of Appeals for the Ninth Circuit has held that a district court may dismiss sua sponte a habeas petition on the grounds that it is barred by applicable the statute of limitations so long as the court provides the petitioner adequate notice of its intent to dismiss and an opportunity to respond. See Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir. 2001). These findings and recommendations are intended to notify petitioner of the court's intention to dismiss the instant petition because it is untimely under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). If petitioner desires to respond and demonstrate to the court that he has filed this action within the applicable statute of limitations or is eligible for tolling of the limitations period, he may do so by filing objections to these findings and recommendations.

THE PETITION

On October 1, 2009, petitioner commenced this action by filing a petition for writ of habeas corpus. Therein, he challenges a rules violation report ("RVR"), Log #S4-06-07-0333, dated July 7, 2006, issued to him for "Battery on an Inmate." Petitioner claims, inter alia, that the RVR was improperly based on involuntary and coerced "confidential information" and that prison officials denied him due process at his disciplinary hearing by refusing to allow petitioner to call a witness. Petitioner seeks dismissal of the RVR and all related documents as well as reinstatement of his ninety days loss of credits. (Pet. at 6-11, 35-38 & 51-52.)

ANALYSIS

I. The AEDPA Statute of Limitations

On April 24, 1996, Congress enacted AEDPA which amended 28 U.S.C. § 2244 by adding the following provision:

(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 ...


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