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Bruce Ellis Johnson v. M. Martel

January 12, 2011

BRUCE ELLIS JOHNSON, PETITIONER,
v.
M. MARTEL, RESPONDENT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus challenging his 2002 Sacramento County conviction. Respondent has filed a motion to dismiss on the ground that the petition is not timely.

I. Procedural Background

On August 16, 2002, petitioner was sentenced to a determinate term of twenty- eight year plus three indeterminate terms of fifteen years to life. Lodged Document (Lodg. Doc.)

Petitioner appealed his conviction to the state Court of Appeal. On March 25, 2004, that court modified the judgment on one of the counts and directed the trial court to correct the abstract of judgment, but affirmed the convictions in all other respects. Lodg,. Doc. 2 at 42-43. On April 22 and June 18, 2004, the superior court modified the judgment. Lodg. Doc. 1. Petitioner sought review from the California Supreme Court, which denied his petition on June 9, 2004.

Counsel for petitioner filed a petition for a writ of habeas corpus in Sacramento County Superior Court on August 2, 2004. Lodg. Doc. 5. That action was stayed pending the California Supreme Court's decision in People v. Black, 35 Cal.4th 1238 (2005) and then denied on September 1, 2005 after the stay was lifted. Lodg. Doc. 6. Petitioner next sought collateral review on June 10, 2009*fn1 by filing a petition for a writ of habeas corpus in the California Supreme Court. Lodg. Doc. 7. That court denied the writ on November 19, 2009. Lodg. Doc. 8.

The instant petition was filed on January 16, 2010. II. The Statute Of Limitations The Antiterrorism and Effective Death Penalty Act (AEDPA)contains a statute of limitations for filing a federal habeas petition:

(d)(1) 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.

(2) 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 any period of limitation under this subsection.

28 U.S.C. § 2244.

A conviction is final for purposes of the AEDPA statute of limitations at the expiration of the ninety day period for seeking certiorari. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

The California Supreme Court denied review on June 9, 2004. The ninety day period for seeking certiorari began running on June 10, 2004 and expired on September 8, 2004. Accordingly the statute of limitations began to run on September 9, 2004.*fn2 Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007) (applying Fed. R. Civ. P. 6(a) to AEDPA calculations; the ...


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