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Koenig v. State

August 17, 2010

STEVEN THOMAS KOENIG, PETITIONER,
v.
STATE OF CALIFORNIA, RESPONDENTS.



The opinion of the court was delivered by: Gregory G. Hollow U.S. Magistrate Judge

ORDER

I. Introduction

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case is before the undersigned pursuant to both parties consent. Docs. 9, 11.

Pending before the court is respondent's March 12, 2010 motion to dismiss on the grounds that this action is barred by the statute of limitations and it is unexhausted. Doc. 15. Petitioner filed an opposition on April 5, 2010, and respondent filed a reply. Docs. 16, 17. After carefully considering the entire record, the court orders that respondent's motion to dismiss be granted and this case closed.

II. Motion to Dismiss

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.

On July 5, 2005, petitioner was sentenced to a determinate state prison term of twenty years after pleading guilty. Motion to Dismiss (MTD) at 2; Lod. Doc. 1. On November 1, 2005, the California Court of Appeal, Third Appellate District, at petitioner's request, dismissed his direct appeal. Id.; Lod. Doc. 2, 3. Petitioner did not seek review in the California Supreme Court. Therefore, petitioner's conviction became final 10 days later on November 11, 2005, upon the expiration of time to seek review. Cal. Ct. R. 8.500(e)(1).

Time began to run the next day, on November 12, 2005. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is, until November 12, 2006, to file a timely federal petition, absent applicable tolling. The instant action, filed November 9, 2009,*fn1 is ...


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