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Steven L. Sanders v. Tim Virga

November 30, 2010

STEVEN L. SANDERS, PETITIONER,
v.
TIM VIRGA, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. Gary A. Feess United States District Judge

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

I.

INTRODUCTION AND SUMMARY On December 17, 2009, petitioner Steven L. Sanders ("Petitioner"), a California prisoner incarcerated at California State Prison, Sacramento and proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254.

On March 11, 2010, Respondent filed a Motion to Dismiss the Petition ("Motion"), asserting that the Petition is barred by the one-year statute of limitation set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1). Petitioner did not file an opposition to the Motion.

On August 27, 2010, the Magistrate Judge issued his Report and Recommendation ("R&R"), recommending that Respondent's Motion be granted and that judgment be entered dismissing this action with prejudice. (See R&R at 2, 11.) On November 5, 2010, Petitioner filed Objections to the R&R ("Objections"). In his Objections, Petitioner asserts that he "filed his opposition to the respondent[']s motion to dismiss . . . which apparently the court never received." (Objs. at 2.)

In any event, Petitioner argues that his Petition is timely because:

(1) Petitioner "did not know the legal basis for the arguments prior to September 18, 2008," (Objs. at 3-4);

(2) Petitioner "is entitled to gap tolling for the 80 days between the denial of the habeas petition on October 10, 2008 in the superior court of Los Angeles and the December 29, 2008 filing for motion to reconsider in the same court," (id. at 5); and

(3) Petitioner is entitled to equitable tolling because "petitioner was in ad/seg from April 24, 2008 through August 4, 2008" and "was also stripped of all property, including legal work, from August 4, 2008 through November 3rd 2008 when all property except [for his] writ of habeas corpus he was working on were taken as part of a disciplinary guilt finding." (Id. at 5-6.)

Now, having conducted a de novo review, including studying the Motion, the R&R, and the Objections, the Court is persuaded that the Petition is untimely. This Court, therefore, adopts the findings, conclusions, and recommendations of the Magistrate Judge.

II.

DISCUSSION AND ANALYSIS

A. The Starting Date of the Limitation Period Is the Date on which Petitioner's Judgment Became Final

Petitioner argues that his "limitation period should run from September 18, 2008 the date which petitioner became aware of the factual predicate of the claim." (Objs. at 3-4.) Petitioner maintains that his "direct appeal became final May 13, 2008 and [he] did not receive his transcripts, reports, etc. from appellate counsel until March 8, 2008." (Id. at 4.) Petitioner contends that he "then began going through his transcripts and asking others for help[ and] attempted to access the law library but" only had ...


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