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Carpenter v. Clark

October 21, 2010

JOHN CARPENTER, PETITIONER,
v.
KEN CLARK, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He alleges that his sentence was imposed in violation of his Sixth Amendment rights as delineated in Cunningham v. California, 549 U.S. 270 (2007) and Apprendi v. New Jersey, 530 U.S. 466 (2000). Respondent has moved to dismiss, arguing that the petition is time-barred.

I. Background

On June 29, 1999, the Nevada County Superior Court sentenced petitioner to the upper term of sixteen years for each of two counts of child molestation and the middle term of two years for another count, and ordered the terms to run consecutively. Lodged Document (Lodg. Doc.) 1.

Petitioner did not appeal his plea and sentencing, but did pursue collateral relief by filing a petition for a writ of habeas corpus in Nevada County Superior Court on October 8, 2008. Lodg. Doc. 2. That court denied the writ on October 16, 2008. Lodg. Doc. 3.

Petitioner then turned to the Court of Appeal, filing a writ on November 24, 2008. Lodg. Doc. 4. That court also denied the petition, on November 26, 2008. Lodg. Doc. 5.

Petitioner then turned to the California Supreme Court; his writ in that court was filed December 14, 2008*fn1 and denied June 24, 2009. Lodg. Docs. 6, 7.

The instant petition was filed in the Northern District on July 23, 2009.

II. The Statute Of Limitations

One of the changes the Antiterrorism and Effective Death Penalty Act (AEDPA) made to the habeas statutes was to add a statute of limitations for filing a habeas petition:

(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 ...


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