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Peter Corona v. Fernando Gonzalez

January 11, 2011

PETER CORONA,
PETITIONER,
v.
FERNANDO GONZALEZ,
WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the review of the Report and Recommendation (ECF No. 8) issued by United States Magistrate Judge Nita L. Stormes, recommending that Respondent's Motion to Dismiss (ECF No. 7) be granted and the First Amended Petition for Writ of Habeas Corpus ("First Amended Petition") (ECF No. 5) be dismissed for failure to file within the applicable statute of limitations.

I. Background

On May 10, 2007, a jury found Petitioner guilty of possessing a controlled substance for sale and the sale of a controlled substance. (Lodgment No. 9, Vol. 4 at 371).

On July 30, 2007, the San Diego County Superior Court sentenced Petitioner to 10 years in prison. (Lodgment No. 9, Vol. 6 at 392).

On August 13, 2007, Petitioner filed a notice of appeal with the California Court of Appeal. (Lodgment No. 2 at 2). On March 20, 2008, Petitioner filed a petition for writ of habeas corpus with the California Court of Appeal. (Lodgment No. 3). On May 7, 2008, the Court of Appeal consolidated Petitioner's petition for writ of habeas corpus with his appeal and issued an order denying the petition and affirming the Superior Court judgment.

(Lodgment Nos. 4, 5). On July 9, 2008, the Court of Appeal filed a Remittitur indicating that the May 7, 2008 decision had become final. (Lodgment No. 6).

On July 21, 2008, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Lodgment No. 7). On January 14, 2009, the California Supreme Court denied the petition. (Lodgment No. 8).

On May 17, 2010, Petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. (ECF No. 1). On June 3, 2010, Petitioner filed the First Amended Petition. (ECF No. 5).

On July 27, 2010, Respondent filed a Motion to Dismiss this action and a Notice of Lodgment. (ECF No. 7). Respondent contends that the Petition is barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d).

The docket reflects that Petitioner did not file an opposition or response to the Motion to Dismiss.

On December 1, 2010, the Magistrate Judge issued the Report and Recommendation. (ECF No. 8). The Magistrate Judge concluded that the Petition was filed after the expiration of the statute of limitations pursuant to 28 U.S.C. § 2244(d). The Report and Recommendation concludes:

Petitioner failed to file his federal habeas petition within the one-year period of limitation imposed by AEDPA. He has also failed to show that he is entitled to statutory or equitable tolling. Therefore, this Court RECOMMENDS that Respondent's Motion be GRANTED and that the Petition be DISMISSED. ...

IT IS SO ORDERED that no later than December 31, 2010, any party to this action may file written objections with the Court ...


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