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Simmons v. Warden

September 13, 2010

WALTER F. SIMMONS, PETITIONER,
v.
WARDEN, S.V.S.P., RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2000 conviction, entered pursuant to a plea of nolo contendere, to charges of kidnapping, dissuading a witness, and three counts of threatening bodily injury. This matter is before the court on respondent's motion to dismiss this action on the grounds that it is barred by the statute of limitations and contains unexhausted claims.*fn1 For the reasons set forth below, this action is time-barred. The court will not, therefore, reach the question of whether petitioner has exhausted state court remedies with respect to the claims raised herein.

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. On April 25, 2000, petitioner was convicted to his no contest plea and sentenced to twenty-seven years and four months in state prison.

2. On June 19, 2000, petitioner filed a notice of appeal. On December 15, 2000, the state moved to dismiss the appeal as unauthorized because petitioner had waived his right to appeal as part of the plea agreement pursuant to which his no contest plea was entered. On January 4, 2001, the California Court of Appeal for the Third Appellate District granted the motion and dismissed the appeal.

3. On October 9, 2001, petitioner filed a petition for writ of habeas corpus in the El Dorado County Superior Court. That petition was denied by order filed October 29, 2001.

4. On January 4, 2002, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. That petition was denied by order filed February 7, 2002.

5. On October 1, 2002, petitioner submitted a petition for writ of habeas corpus to the California Supreme Court. That petition was denied in an order filed February 19, 2003 citing to In re Swain (1949) 34 Cal.2d 300, 304 and In re Duvall (1995) 9 Cal.4th 464, 474.

6. On November 20, 2008, petitioner filed a petition for writ of habeas corpus and motion for coram nobis in the El Dorado County Superior Court. The petition ...


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