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Hung T. Ly v. Kenneth Clark

February 9, 2011

HUNG T. LY, PETITIONER,
v.
KENNETH CLARK, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 conviction on charges of first degree murder with special circumstances. Petitioner is serving a sentence of life in prison without possibility of parole plus twenty-five years to life, imposed on March 24, 2006. This matter is before the court on respondent's motion to dismiss the action as unexhausted and barred by the statute of limitations, and on petitioner's motion for stay and abeyance.

I. Statute of Limitations

Section 2244(d) of Title 28 of the United States Court contains a statute of limitations for filing a habeas petition in federal court:

(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. The following facts are relevant to the statute of limitations analysis.

1. On September 6, 2005, petitioner was convicted by a jury of first degree murder with special circumstances.

2. On March 24, 2006, petitioner was sentenced to life in prison without possibility of parole plus twenty-five years to life in prison.

3. On September 23, 2008, petitioner's conviction was affirmed on direct appeal by the California Court of Appeal for the Third Appellate District as, with the exception of a minor sentencing correction, was his sentence.

4. On January 14, 2009, the California Supreme Court denied review.

5. On March 10, 2010, petitioner filed*fn1 a petition for writ of habeas corpus in the Sacramento County Superior Court. On April 26, 2010, the superior court denied the petition as untimely. The ...


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