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Thomas v. Uribe

September 9, 2010

KENNETH S. THOMAS, PETITIONER,
v.
DOMINGO URIBE, JR., WARDEN,*FN1 RESPONDENT.



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

ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 13, 2010, respondent filed a motion to dismiss this action as barred by the statute of limitations. On August 27, 2010, petitioner filed an opposition. For the reasons set forth below, the court recommends respondent's motion be granted.

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 pled no contest to transporting and selling methamphetamine. Petitioner was sentenced on April 27, 2000, to an indeterminate term of twenty-five years to life in state prison. (Respondent's Lodged Document ("LD") 1.)

2. Petitioner appealed his sentence. On March 7, 2002, the California Court of Appeal, Third Appellate District, affirmed the judgment. (LD 2.)

3. On April 29, 2002, petitioner filed a petition for review in the California Supreme Court. (LD 3.) The California Supreme Court denied the petition on May 22, 2002. (LD 4.)

4. On December 1, 2002,*fn2 petitioner filed a petition for writ of habeas corpus in the Placer County Superior Court. (LD 5.) The petition ...


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