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Johnson v. Walker

May 5, 2010

CHARLES JOHNSON JR., PETITIONER,
v.
JAMES WALKER, RESPONDENT.



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

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Pending before the court is respondent's February 16, 2010 motion to dismiss on the grounds that this action is barred by the statute of limitations. Dkt. No. 14. Petitioner filed an opposition on April 19, 2010. Dkt. No. 16. 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 January 7, 2005, petitioner pled no contest to being an ex-felon in possession of a firearm and admitted two prior felony convictions. Motion to Dismiss (MTD) at 29.*fn1 On March 8, 2005, petitioner was sentenced to 25 years to life in state prison. Id. Petitioner did not appeal the conviction. Therefore, petitioner's conviction became final 60 days later on May 7, 2005, upon the expiration of time to seek review. Cal. Rules of Court 8.308(a); Lewis v. Mitchell, 173 F.Supp.2d 1057, 1060 (C.D. Cal. 2001) (discussing former California Rules of Court Rule 31(d)).

Time began to run the next day, on May 8, 2005. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is, until May 8, 2006, to file a timely federal petition, absent applicable tolling. The instant action, filed May 17, 2009,*fn2 is not ...


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