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Jordan v. Neotti

May 26, 2010

DONALD A. JORDAN, PETITIONER,
v.
GEORGE A. NEOTTI, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Otis D. Wright, II United States District Judge

MEMORANDUM AND ORDER

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on September 21, 2009, accompanied by an attached Memorandum of Points and Authorities ("Pet. Mem."). Respondent filed an Answer on March 18, 2010, contending that the Petition is untimely. Petitioner filed a Traverse on May 14, 2010, accompanied by an attached Memorandum ("Traverse Mem.") and exhibits.

BACKGROUND

In People v. Jordan, BA281783, the Los Angeles Superior Court found Petitioner guilty of four counts of committing a lewd act on a child who was 14 or 15 years old while Petitioner was at least 10 years older, in violation of California Penal Code section 288(c)(1), and one count of inducing a child under the age of 16 to engage in a lewd act, in violation of California Penal Code section 266j (Pet. Mem., pp. 3-4; Respondent's Lodgment 2). The court found true the allegations that Petitioner had suffered a prior conviction qualifying as a "strike" under California's Three Strikes law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d) (Pet. Mem., pp. 3-4).*fn1

Petitioner received a total sentence of sixteen years (Respondent's Lodgment 2).

The Court of Appeal affirmed the judgment (Respondent's Lodgment 6; see People v. Mitchell, 2007 WL 2774461 (Cal. App. Sept. 25, 2007)). On December 12, 2007, the California Supreme Court denied Petitioner's petition for review (Respondent's Lodgment 8).

On March 21, 2008, Petitioner filed a habeas corpus petition in this Court. See Jordan v. Hernandez, CV 08-1939-SGL(E) ("the prior action"). On June 3, 2008, Respondent filed an Answer contending that the Petition was partially unexhausted. On August 19, 2008, Petitioner filed a motion for voluntary dismissal of the prior action.

On September 24, 2008, the Court entered judgment dismissing the prior action without prejudice.

On October 6, 2008, Petitioner filed a habeas corpus petition in the California Court of Appeal, challenging his conviction in Los Angeles Superior Court case number BA281783 (Traverse, Ex. B). On November 20, 2008, the Court of Appeal denied the petition on the merits (id.).*fn2

On January 16, 2009, Petitioner filed a petition for habeas corpus in the California Supreme Court, bearing a service date of January 15, 2009 (Respondent's Lodgment 9). On June 24, 2009, the California Supreme Court denied this habeas petition with a citation to In re Waltreus, 62 Cal. 2d 218, 42 Cal. Rptr. 9, 397 P.2d 1001, cert. denied, 382 U.S. 853 (1965) (Respondent's Lodgment 10).*fn3

DISCUSSION

The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:

(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 ...


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