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Jeremaia Naviko v. J. D. Hartley

March 15, 2011

JEREMAIA NAVIKO, PETITIONER,
v.
J. D. HARTLEY, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a former state prisoner currently in the custody of the U.S. Immigration and Customs Enforcement proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2003 conviction on two counts of lewd acts on a child and three counts of sexual battery. This matter is before the court on respondent's motion to dismiss this action on the grounds that it is barred by the statute of limitations.

Section 2244(d)(1) of title 28 of the United States Code provides: 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.

28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that "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" the limitations period. 28 U.S.C. § 2244(d)(2).

For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:

1. On August 18, 2003, petitioner was sentenced to ten years in prison following his July 21, 2003 conviction.

2. On September 15, 2003, petitioner filed a notice of appeal. On July 27, 2004, the California Court of Appeal for the Third Appellate District reduced one of the sexual battery charges to a misdemeanor and remanded the matter for resentencing.

3. On November 9, 2004, petitioner was resentenced to nine years in prison. An amended abstract of judgment was filed on the same day.

4. Petitioner appealed from the new sentence. On August 4, 2005, the California Court of Appeal for the Third Appellate District affirmed the amended judgment.

4. On October 12, 2005, the California Supreme Court denied petitioner's petition for review.

5. On November 29, 2005*fn1 , petitioner filed a petition for writ of habeas corpus to the Sacramento County Superior Court. That petition was denied by order filed January 17, 2006.

6. On May 14, 2006, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. That ...


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