FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Respondent has filed a motion to dismiss, arguing that the petition was filed outside the statute of limitations. Petitioner has filed an opposition, and respondent a reply.
On December 21, 1992, petitioner was convicted of kidnapping for purposes of rape, kidnapping, sodomy in concert, two counts of robbery, three counts of sexual penetration with a foreign object in concert, and three counts of rape in concert. Am. Abstract of J., Resp't's Lodged Doc. (Lodg. Doc.) 8.*fn1 On March 3, 1993, petitioner was sentenced to seventy-eight years and eight months in prison. Id. He was sentenced to the middle term for the robbery counts and the upper term for the other charges. Id. Petitioner states that he was sentenced to the upper terms "due to aggravating factors found by the judge, and not the jury." Pet. at 1 (Docket No. 1). Respondent does not dispute that the trial judge weighed mitigating and aggravating factors that had not been presented to the jury
Petitioner pursued a direct appeal in state court, which culminated in the California Supreme Court's denial of review on October 26, 1994. See Lodg. Docs. 2-4. More than twelve years later, petitioner began state habeas proceedings when he filed a petition on March 22, 2007, in Sacramento County Superior Court. See Lodg. Doc. 5. Petitioner's state remedies were exhausted when the California Supreme Court denied his petition for a writ on March 26, 2008. See Lodg. Doc. 12.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that it was improper for judges to increase prison sentences based on facts not submitted to the jury. The Supreme Court applied this rule in California v. Cunningham, 549 U.S. 270 (2007), and invalidated the California determinate sentencing law under which petitioner was sentenced. See Cal. Penal Code § 1170(b) (1992).*fn2 This change in sentencing law forms the basis for petitioner's claim. He filed the instant petition on September 4, 2008.
II. The Statute Of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA imposes various requirements on all petitions for writs of habeas corpus filed after its enactment. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). As noted, the instant petition was filed September 4, 2008, and thus is subject to AEDPA.
AEDPA imposes a one-year statute of limitations for filing a habeas petition:
(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 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.
(2) 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 ...