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McGee v. Marshall

July 27, 2010

JOHN FITZERALD MCGEE PETITIONER,
v.
JOHN MARSHALL*FN1, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Sacramento County in 2003 of forcible oral copulation, sexual penetration with force, spousal abuse, and spousal rape. (Pet. at 1.) On April 25, 2003, he was sentenced to an indeterminate state prison term of 86 years to life. (Notice of Lodging Documents on February 4, 2010 (Doc. No. 12), Lod. Doc. 1.) On April 15, 2005, the Court of Appeal modified the amount of petitioner's presentence custody credit, but otherwise affirmed the judgment. (Lod. Doc. 3.)

On August 7, 2006, petitioner filed a petition for habeas relief in the Sacramento County Superior Court. (Lod. Doc. 10.) The petition was denied, but resulted in the Superior Court's application of an interim three-strikes case, People v. Williams, 34 Cal. 4th 397 (2004), that mandated a ten-year increase in petitioner's sentence. (Lod. Doc. 11.) Accordingly, on September 11, 2006, the Superior Court amended the abstract of judgment to increase petitioner's sentence to 96 years to life. (Lod. Doc. 12.)

Petitioner challenges his conviction on numerous grounds, the nature of which are not entirely clear from his petition. As respondent observes, petitioner appears to contend in part that he received ineffective assistance of counsel, that his sentence constitutes cruel and unusual punishment, that there is insufficient evidence to support his conviction, and that he is actually innocent. (Pet. at 4-5; see MTD at 11.)

Motion to Dismiss

Respondent moves for dismissal on two grounds: 1) that the petition has been filed beyond the AEDPA statute of limitations; and 2) that petitioner has failed to exhaust his state court remedies. Alternatively, respondent urges that the petition should be denied as conclusory. As the court, after full consideration and analysis, concludes that petitioner's petition is time-barred, it is unnecessary to reach respondent's other arguments.

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.

After the amended abstract judgment in compliance with Williams issued, petitioner did not appeal. (Motion to Dismiss (hereinafter MTD) at 4.) Therefore, petitioner's conviction became final for purposes of section 2244(d)(1)(A) when the time for filing an appeal of the amended judgment expired, on November 10, 2006, sixty days later. Cal. Rule of Court 8.308(a) (time for filing a notice of criminal appeal in state court); Lewis v. Mitchell, 173 F. Supp. 2d 1057, 1060 (C.D. Cal. 2001). As respondent observes (MTD at 5), the AEDPA statute began to run the following day, on ...


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