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Maurice D. Kenney v. Ricky Hill

February 24, 2011

MAURICE D. KENNEY, PETITIONER,
v.
RICKY HILL, RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Pending before the court is respondent's September 10, 2010 motion to dismiss on the grounds that this action is barred by the statute of limitations, it contains an unexhausted claim, and ground three is not cognizable on federal habeas review. Doc. 10. After carefully considering the entire record, the court recommends that respondent's motion to dismiss be granted and this case closed.

II. Motion to Dismiss

The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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.

On September 12, 2003, petitioner was sentenced to a determinate state prison term of thirty years and eights months. Lodged Document (Lod. Doc.) 1. On July 19, 2005, the California Court of Appeal, Third Appellate District, stayed the sentence on one charge, but affirmed the judgment in all other respects. Lod. Doc. 2. On November 16, 2005, the California Supreme Court granted the petition for review and several years later, on February 19, 2009, affirmed the Court of Appeal's decision. Lod. Docs. 6, 7. Petitioner's conviction became final 90 days later, on May 20, 2009, when the time to file a petition for writ of certiorari in the United States Supreme Court expired. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). Time began to run the next day, on May 21, 2009. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is, until May 21, 2010, to file a timely federal petition, absent applicable tolling. The instant action, filed June 15, 2010,*fn1 is not timely unless petitioner is entitled to statutory or equitable tolling.

Petitioner filed one state post-conviction collateral action:

1. August 8, 2007: Habeas petition filed in Sacramento County Superior Court. Lod. Doc. 8. The petition was denied on ...


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