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Pitchford v. Cullen

August 9, 2010

WAYLON PITCHFORD, PETITIONER,
v.
VINCE CULLEN,*FN1 RESPONDENT.



ORDER

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is proceeding before a United States Magistrate Judge with the consent of the parties pursuant to 28 U.S.C. § 636(c). See Consents filed February 2, 2010 and April 13, 2010. Respondent has moved to dismiss this action as barred by the statute of limitations. Petitioner has not opposed the motion.

Section 2244(d)(1) of Title 28 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 on February 7, 2003 and sentenced on March 10, 2003.

2. On April 19, 2004, the California Court of Appeal for the Third Appellate District affirmed petitioner's conviction. Petitioner did not seek review in the California Supreme Court.

3. On May 7, 2008, petitioner filed a petition for writ of habeas corpus in the Tehama County Superior Court.*fn2 That petition was denied on May 16, 2008.

4. On June 8, 2008, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District.*fn3 It was denied by order filed June 19, 2008.

5. On June 30, 2008, petitioner filed a petition for writ of habeas corpus in the California Supreme Court.*fn4 It was ...


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