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Rogers v. Curry

February 22, 2010

FRANKIE L. ROGERS, PETITIONER,
v.
BEN CURRY, ET AL., RESPONDENTS.



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

ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding without counsel on an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2006 conviction, entered pursuant to a plea of no contest, on charges of gross vehicular manslaughter while intoxicated, and admitted a great bodily injury enhancement, and a prior prison term enhancement. Petitioner was sentenced to a determinate state prison term of 12 years. This matter is before the court on respondents' motion to dismiss this action as barred by the statute of limitations.

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 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 any period of limitation under this subsection." 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. On January 18, 2006, petitioner was convicted pursuant to a no contest plea and sentenced to twelve years in prison. Lodged Doc. 1. Petitioner did not appeal his sentence.

2. On March 11, 2007, petitioner signed and dated a petition for writ of habeas corpus in the Sacramento County Superior Court. Lodged Doc. 2. The petition was denied on May 1, 2007. Lodged Doc. 3.

3. On May 16, 2007, petitioner signed and dated a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. Lodged Doc. 4. The petition was denied on May 24, 2007. Lodged Doc 5.

4. On August 28, 2007, petitioner signed and dated a petition for writ of habeas corpus in the California Supreme Court. Lodged Doc. 6. The petitioner was ...


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