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Tyrell v. Hoffman

March 17, 2010

JONATHAN REGENT TYRELL, PETITIONER,
v.
THOMAS HOFFMAN, RESPONDENT.



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

ORDER & FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner proceeding without counsel*fn1 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 plea of no contest to battery with serious injury, forgery, child annoyance/molestation and possession of methamphetamine. He served a 64 month sentence.*fn2

Pending before the court is respondent's July 24, 2009 motion to dismiss on the grounds that this action is barred by the statute of limitations. Dkt. No. 12. Petitioner filed an opposition and respondent filed a reply. Dkt. Nos. 16, 21. Petitioner also filed an additional sur-reply and a motion for the court to accept the sur-reply. Dkt. Nos. 22, 23. The court herein considers review of petitioner's sur-reply, but after carefully considering the entire record, the court recommends that respondent's motion to dismiss be granted and this case closed.

II. Motion to Dismiss

The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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.

On August 16, 2006, the California Court of Appeal, Third Appellate District, imposed a fifty dollar drug laboratory fee and affirmed the judgment against petitioner in all other respects.*fn3 Respondent's Lodged Document (hereinafter "Lod. Doc.") 2. Petitioner did not seek review in the California Supreme Court. Therefore, petitioner's conviction became final 40 days later on September 25, 2006, when the time for filing a petition with the California Supreme Court expired. Cal. Ct. R. 8.264(b)(1) & 8.500(e)(1)

The statute of limitations began to run the next day, on September 26, 2006. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is until September 26, 2007, to file a timely federal petition, absent applicable tolling. The instant action, filed November 9, 2008,*fn4 is not timely unless petitioner is entitled to tolling or a later start date of the statute of limitations.

Petitioner filed four state post-conviction collateral actions:

1. February 7, 2007: First habeas petition filed in the California Court of Appeal, Third Appellate District. Lod. Doc. 4. The petition was denied on April 5, 2007, and included a citation to Smith v. Robbins, 528 U.S. 259 (2002). Lod. Doc. 5.

2. August 26, 2007: Second habeas petition filed in the Placer County Superior Court. Lod. Doc. 6. The petition was denied on November 12, 2007, with a reasoned opinion and included citations to In re Clark, 5 Cal. 4th 765 (1993); In re Swain, 34 Cal. 2d 300 (1949); and In re Robbins, 18 Cal. 4th 770, 780 (1998). Lod. Doc. 7.

3. January 28, 2008: Third habeas petition filed in the California Court of Appeal, Third Appellate District. Lod. Doc. 8. The petition was denied on March 6, 2008. Lod. Doc. 9.

4. June 2, 2008: Fourth habeas petition filed in the California Supreme Court. Lod. Doc. 10. The petition was denied on ...


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