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Abernathy v. Curry

June 25, 2010

JAMES RONELL ABERNATHY, PETITIONER,
v.
BEN CURRY, WARDEN, RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He alleges that his 1995 Sacramento County convictions for burglary, robbery, false imprisonment, along with sentencing enhancements for gun use, are invalid because appellate counsel was ineffective; the trial court erred in refusing to strike petitioner's prior convictions; the upper term for the robbery was imposed in violation of his right to jury trial; the trial court erred in imposing consecutive sentences; and trial counsel was ineffective.

Defendant has filed a motion to dismiss, arguing that the petition was filed outside the statute of limitations. Petitioner has filed a pleading he calls a motion to reinstate his Cunningham claim (docket no. 17), and another entitled "memorandum of points and authorities in support of motion for this court to accept petitioner for writ of habeas corpus in lieu of respondent's motion to dismiss claim." Docket No. 18. The court will consider the latter in conjunction with a declaration and short opposition. Docket No. 19.

I. Background

On June 1, 1995, petitioner was sentenced to a total term of thirty-three years, eight months in prison. Lodged Document (Lodg. Doc.) 1. He appealed his conviction, which was affirmed on July 22, 1997 by the California Court of Appeal. Lodg. Doc. 2. The California Supreme Court denied his petition for review on October 1, 1997. Lodg. Doc. 4.

Petitioner did nothing further until 2000, when he filed a petition for a writ of habeas corpus in Sacramento County Superior Court.*fn1 Lodg. Doc. 5. This was denied as untimely. Lodg. Doc. 6.

Petitioner filed a new petition in the Superior Court on February 26, 2001; it, too, was denied as untimely. Lodg. Docs. 7 & 8. A third Superior Court petition, filed on March 27, 2002, was denied as untimely and successive and found to be an abuse of the writ process. Lodg. Docs. 9 & 10.

On July 12, 2004, petitioner returned to the Superior Court contending that the abstract of judgment was in error. Lodg. Doc. 11. The court denied this petition on August 6, 2004. Lodg. Doc. 12.

A new petition for a writ of habeas corpus was filed in the Superior Court on March 31, 2007. Lodg. Doc. 13. This raised, among other things, a challenge to his sentence based on Cunningham v. California, 549 U.S. 270 (2007). Id. The court rejected petitioner's Cunningham claims and found his additional contentions to be untimely and successive. Lodg. Doc. 14.

Thereafter petitioner unsuccessfully pursued habeas relief in the Court of Appeal and the California Supreme Court, which denied the writ on March 18, 2009. Lodg. Docs. 15-18.

The instant petition was filed May 19, 2009.*fn2

II. Analysis

One of the changes the Antiterrorism and Effective Death Penalty Act (AEDPA) made to the habeas statutes was to add a 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 ...


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