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Kenneth Hill v. J. Walker

February 28, 2011

KENNETH HILL, PETITIONER,
v.
J. WALKER, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner is a state prisoner proceeding without counsel and in forma pauperis, with an application for writ of habeas corpus under 28 U.S.C. § 2254. Respondent has filed a motion to dismiss, arguing that the petition is untimely under 28 U.S.C. § 2244(d). Petitioner has filed an opposition. Both parties have consented to the magistrate judge's jurisdiction under 28 U.S.C. § 636(c). For the reasons set forth herein, the court grants respondent's motion to dismiss.

I. Procedural Background

On April 13, 2005, petitioner was convicted in Sacramento County Superior Court

of making terrorist threats. The trial court applied two sentencing enhancements, and on June 24, 2005, petitioner was sentenced to a determinate term of sixteen years in prison. See Abstract of Judgment, Petition p. 65.*fn1

Petitioner appealed his conviction and sentence, culminating in the California Supreme Court's denial of review on November 29, 2006. Id. at 7. Petitioner also filed a petition for writ of certiorari in the United States Supreme Court. It was denied on October 1, 2007. Id. at 9.

While his petition for certiorari was still pending, petitioner initiated the state habeas process by filing a petition for post-conviction relief in Sacramento County Superior Court on July 18, 2007. See Lodged Document 11. The Superior Court denied the petition with a detailed opinion and order on the merits on September 4, 2007. See Lodged Doc. 12. Petitioner filed a motion for reconsideration in Superior Court; the court issued another detailed denial of the motion on October 29, 2007. See Lodged Docs. 13 and 14. Petitioner then proceeded through the next two levels of the state habeas process, ending in the California Supreme Court's denial of his petition on August 20, 2008. See Lodged Docs. 15-18.

On October 3, 2008, petitioner initiated a second round of the state habeas process by filing another petition for post-conviction relief. That petition asserted three claims: (1) new evidence showed a witness' trial testimony about petitioner's gang membership was false; (2) the prosecution failed to disclose material evidence favorable to the defense; and (3) ineffective assistance of defense counsel. See Lodged Doc. 19. Only the claim of new evidence presented an issue that had not been presented in the first round of the habeas process. The new evidence was a recantation by a witness who had testified at trial that petitioner "'claimed to be from the Nogales Gangster Crips' during the commission of the offense." Order of Sacramento County Superior Court, Lodged Document 20 at 3. The witness later signed an affidavit in which she swore that she "'gave these statements and testimony under duress from the prosecution and

Child Protective Services and in exchange for payments.'" Id. at 2.

On February 6, 2009, the Superior Court ruled that "[i]t is clear that the petition is successive and untimely." Lodged Doc. 20, p. 1. Petitioner continued his second round of habeas petitions through the remaining two stages, ending in the California Supreme Court's summary denial on August 26, 2009. See Lodged Docs. 21-24. He filed this federal habeas action on October 1, 2009.

II. Timeliness Under 28 U.S.C. § 2244(d)

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). That 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 ...


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