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James F. Salmon v. Anthony Hedgpeth

December 19, 2010

JAMES F. SALMON, PETITIONER,
v.
ANTHONY HEDGPETH,*FN1
RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a California prisoner represented by counsel, applying for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his criminal conviction. Respondent has filed a motion to dismiss petitioner's habeas application as time-barred. A hearing with respect to respondent's motion was held on September 9, 2010. Charles Carbone appeared as counsel for petitioner; Daniel Bernstein appeared as counsel for respondent.

I. Factual Background

On June 12, 1996, petitioner was convicted of kidnapping, first degree murder and torture. Resp't's Lodged Doc. #1. On August 11, 2006, petitioner was ordered to serve a sentence of life without the possibility of parole and other concurrent sentences. Id. Petitioner appealed his conviction to the California Court of Appeal, Third Appellate District. Resp't's Lodged Doc. #6. The Court of Appeal issued its opinion regarding the appeal on August 22, 2008 and upheld petitioner's convictions. Resp't's Lodged Doc. #2. Petitioner sought review of the Court of Appeal's decision in the California Supreme Court. Resp't's Lodged Doc. #3. That request was denied on December 10, 2008. Resp't's Lodged Doc. #5. The instant federal petition was filed March 15, 2010.

II. AEDPA Analysis

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) has a one-year limitations period for habeas cases by persons in custody pursuant to a state court judgment. The statute provides as follows:

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).

Petitioner's conviction became final for purposes of § 2244(d)(1)(A) on March 10, 2009 when the time for filing a petition for writ of certiorari in the United State Supreme Court concerning the denial of petitioner's California Supreme Court petition for review expired. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). The limitations period applicable to petitioner's habeas petition commenced under § 2244(d)(1)(A) on March 11, 2009. Absent tolling, the limitations period ran out on March 10, 2010. As noted, petitioner filed his federal petition for writ of habeas corpus on March 15, 2010.*fn2

Under 28 U.S.C. § 2244(d)(2) the limitations period is suspended for the time during which a "properly filed" application for post-conviction or other collateral review is "pending" in state court. However, petitioner did not file any applications for post-conviction or other collateral review with respect to the convictions at issue in this action in state court.

The statute of limitations may be subject to equitable tolling if a petitioner can demonstrate (1) he had been pursuing his rights diligently, and (2) some extraordinary circumstance prevented him from filing on time. Holland v. Florida, __ U.S. __, 130 S. Ct. 2549, 2562 (2010). Petitioner must show that the "extraordinary circumstance" was ...


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