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Carl Robert Wicklund v. D.K. Sisto

February 9, 2011

CARL ROBERT WICKLUND, PETITIONER,
v.
D.K. SISTO, RESPONDENT.



Petitioner is a state prisoner proceeding pro se and in forma pauperis with an application for writ of habeas corpus under 28 U.S.C. § 2254. The parties have previously consented to magistrate judge's jurisdiction over this action pursuant to 28 U.S.C. § 636(c). Respondent has filed a motion to dismiss on the ground that the petition was filed beyond the applicable one-year statute of limitations set forth in 28 U.S.C. § 2244(d). Petitioner has filed an opposition.

I. Background

On April 12, 2002, petitioner was sentenced, pursuant to his guilty plea, in the Sutter County Superior Court on two counts of first degree burglary. Petitioner also admitted at that time to using a firearm in the commission of one of the offenses. He was sentenced to a determinate prison term of sixteen years in state prison. (Lodged Document 1.)

Petitioner appealed his judgment of conviction. On October 30, 2002, the California Court of Appeal for the Third Appellate District, directed the trial court to correct the abstract of judgment to reflect that petitioner had pled guilty on one count to first degree burglary and not second degree burglary, but otherwise affirmed the judgment. (Lodged Doc. 2.) Petitioner did not seek review in the California Supreme Court.

Petitioner filed his first post-conviction collateral challenge in Sutter County Superior Court on April 7, 2003. (Lodged Doc. 3.) That petition was denied on April 21, 2003. Petitioner then filed a habeas petition in the California Court of Appeal for the Third Appellate District, on May 6, 2003. (Id.) The petition was denied nine days later, on May 15, 2003. Petitioner would not file another collateral challenge to his conviction or sentence until September 17, 2008, when he again filed a petition for writ of habeas corpus in Sutter County Superior Court. (Lodged Doc. 5.) Petitioner pursued that challenge through every level of the state habeas process, culminating in the California Supreme Court's denial of his petition on August 12, 2009. (Lodged Docs 9, 10.) He filed the instant federal petition for writ of habeas corpus in this court on November 29, 2009.

II. Statute of Limitations

Respondent argues that the petition is untimely. Under the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"), a one-year period of limitation applies to a petition for writ of habeas corpus filed in federal court by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). The statute of limitations applies to all federal habeas petitions filed after the statute was enacted on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). The statute provides, in relevant part:

(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 ...


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