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Apollo v. Dickinson

November 4, 2010

JOHN V. APOLLO, PETITIONER,
v.
K. DICKINSON, 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 an application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 18, 2010, respondent filed a motion to dismiss this action as barred by the statute of limitations. On April 9, 2010, petitioner filed an opposition. On April 22, 2010, respondent filed a reply. For the reasons set forth below, the court orders that respondent's motion be granted and this case be closed.

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 guilty to second degree robbery. (Dkt. No. 1 at 1.) On October 8, 1996, petitioner was sentenced to twenty-five years to life with the possibility of parole. (Id.)

2. Petitioner appealed his sentence. On March 27, 1997, the California Court of Appeal dismissed the appeal at petitioner's request. (Respondent's Lodged Document ("LD") 2.)

3. Petitioner did not seek review in the California Supreme Court.

4. On August 29, 2007,*fn1 petitioner filed a petition for writ of habeas corpus in the El Dorado County Superior Court. (LD 3.) The petition was denied on September 24, 2007. (LD 4.) The El Dorado County Superior Court found petitioner failed to explain any reason for the ten ...


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