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Stewart v. Martel

February 18, 2010

CHRISTOPHER ANDREW STEWART, PETITIONER,
v.
M. MARTEL, ET AL.,



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ODER and FINDINGS Respondents. 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. In 1996, petitioner pled no contest to second degree murder and was sentenced to an indeterminate state prison term of fifteen years to life in prison. Petitioner claims that jeopardy attached to the murder charge when his plea to manslaughter was entered after the jury was sworn and evidence taken, and that he received ineffective assistance of counsel in connection with that claim. Petitioner also contends he is entitled to equitable tolling due to ineffective assistance of counsel and his mental health issues.

Respondents have moved to dismiss this action as barred by the one-year statute of limitations. See 28 U.S.C. § 2244(d).

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted. Section 2244(d)(1) of Title 8 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 pursuant to a no contest plea on charges of second degree murder. On March 1, 1996, petitioner was sentenced to fifteen years to life in prison. Petitioner did not appeal his conviction or sentence.

2. On May 10, 2007, petitioner signed and dated a petition for writ of habeas corpus in the Sacramento County Superior Court.*fn1 See Lodged Document No. 2.*fn2 That petition was denied by order filed June 29, 2007. See Lodged Document No. 3.

3. On September 28, 2007,*fn3 petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. See Lodged Document No. 4. That petition was denied by ...


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