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Vaca v. Cate

November 23, 2010

SALVADOR MENDEZ VACA, PETITIONER,
v.
MATTHEW CATE, 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 a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is presently before the court on respondent's motion to dismiss based on the contention that petitioner's claims are barred by the statute of limitations. In response to an order to show cause issued by this court on October 19, 2010, petitioner has now filed an opposition to respondent's motion. For the following reasons, this court recommends that respondent's motion be granted.

I. Introduction

Petitioner pled guilty in September 1996 to four counts of transporting heroin and two counts of possession of heroin for sale. Petitioner was sentenced to eight years in state prison, but the sentence was stayed and petitioner was placed on probation. In July 2007, petitioner was found to have violated probation and the previously stayed sentence was imposed.

Petitioner is currently incarcerated at the Sierra Conservation Center in Jamestown, California.

II. Legal Standards

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), enacted on April 24, 1996, applies to all petitions for writs of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Ainsworth v. Calderon, 138 F.3d 787, 790 (9th Cir. 1998). Under AEDPA, a petitioner must first exhaust his state court remedies before timely filing a petition for writ of habeas corpus in federal court. AEDPA sets forth the following legal standards relative to the applicable statute of limitations:

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. ยง 2244(d)(1). In addition, 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 ...


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