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Burton v. Swarthout

August 31, 2010

CARLOS CORTEZ BURTON, PETITIONER,
v.
S. SWARTHOUT, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding without counsel with an application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 9, 2010, findings and recommendations issued based on petitioner's failure to show cause in response to this court's June 10, 2010 order. On July 19, 2010, petitioner filed a response indicating he had previously submitted a response with attached exhibits. Review of the docket reflects the filing of a declaration by petitioner on July 6, 2010 (docketed on July 7, 2010). Good cause appearing, the findings and recommendations will be vacated. The court turns now to the pending motion to dismiss. Respondent contends that petitioner's claims are barred by the statute of limitations and that the petition must be dismissed.

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted. Section 2244(d)(1) of Title 8 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 of torture, aggravated mayhem, domestic violence, and child endangerment. A number of sentencing enhancements were found true. On December 13, 2005, petitioner was sentenced to an indeterminate state prison term of life with the possibility of parole, plus one year. (Respondent's Lodged Document ("LD") 1.)

2. Petitioner appealed his sentence. On September 27, 2006, the California Court of Appeal, Third Appellate District, affirmed the judgment. (LD 2.)

3. Petitioner filed a petition for review in the California Supreme Court on November 2, 2006. (LD 3.) On January 17, 2007, the California Supreme Court denied the petition. (LD 4.)

4. On December 11, 2007,*fn1 petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (LD 5.) The petition ...


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