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Kenneth A. Fuller v. Rick Hill

May 9, 2011

KENNETH A. FULLER, PETITIONER,
v.
RICK HILL, WARDEN,
RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 26, 2010, the undersigned ordered respondent to file and serve a response to the petition. On December 28, 2010, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has not filed an opposition to the motion.*fn1

BACKGROUND

On June 4, 2007, petitioner pleaded no contest to a misdemeanor charge of driving under the influence in the Solano County Superior Court. On the same day, that court suspended imposition of sentence and placed petitioner on probation for three years. According to his petition filed with this court, petitioner did not appeal the conviction. On November 30, 2009, however, petitioner did file a petition for writ of habeas corpus attacking his misdemeanor conviction in the California Supreme Court. On February 3, 2010, the California Supreme Court denied the petition. (Resp't's Mot. to Dismiss Exs. 1 & 2.)

Under the mailbox rule*fn2 , on April 7, 2010, petitioner commenced this action by filing a federal petition for writ of habeas corpus with this court.

RESPONDENT'S MOTION TO DISMISS

Respondent moves to dismiss the pending petition, arguing that it is time-barred. Specifically, respondent argues that petitioner's judgment of conviction became final on August 3, 2007, after the time for filing a direct appeal had expired. The statute of limitations for the filing of a federal habeas petition began running the following day on August 4, 2007, and expired one year later on August 3, 2008. (Resp't's Mot. to Dismiss at 2.)

Respondent acknowledges that the proper filing of a state post-conviction application challenging a judgment of conviction tolls the one-year statute of limitations period. However, respondent contends that petitioner is not entitled to statutory tolling because he did not file his sole state habeas petition with the California Supreme Court until after the statute of limitations for the filing of a federal petition had expired. Accordingly, respondent maintains that the pending petition is untimely and must be dismissed with prejudice. (Resp't's Mot. to Dismiss at 2-3.)

ANALYSIS

I. The AEDPA Statute of Limitations

On April 24, 1996, Congress enacted AEDPA which amended 28 U.S.C. § 2244 by adding the following provision:

(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 ...


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