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Kimerer v. Clark

May 25, 2010

FORREST RAYMOND KIMERER, PETITIONER,
v.
KEN CLARK, RESPONDENT.



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

FINDINGS AND RECOMMENDATION

Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 28, 2010, respondent filed a motion to dismiss the petition as untimely. Petitioner failed to file a timely opposition. On April 9, 2010, petitioner was granted an additional fourteen days in which to file an opposition. Petitioner was also cautioned that failure to file an opposition would result in a recommendation that this action be dismissed. More than thirty days have passed the April 9 order, and plaintiff has failed to file an opposition.

In 1996, petitioner pled guilty to one count of a lewd and lascivious act with a minor, Cal. Penal Code § 288(b), and a sentencing enhancement was found true pursuant to Cal. Penal Code § 667.61(b). (Pet. at 1.) Petitioner was sentenced to an indeterminate state prison term of fifteen years to life in prison. (Id.; Resp't's Lodged Document ("Lod. Doc.") 1 at 1.)

Respondent has 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 guilty plea. On July 22, 1996, petitioner was sentenced to fifteen years to life in prison. (Lod. Doc. 1.) Petitioner did not appeal his conviction or sentence. (Pet. at 1.)

2. On June 11, 2007, petitioner filed a petition for writ of habeas corpus in the Yuba County Superior Court.*fn1 See Lodged Document No. 2. That petition was denied by order ...


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