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Walter Danny Ceasar, Iii v. Kathleen Allison

June 8, 2011

WALTER DANNY CEASAR, III PETITIONER,
v.
KATHLEEN ALLISON,*FN1
RESPONDENT



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

FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254.*fn2 Pending before the court is respondent's motion to dismiss to which petitioner filed his opposition following this court's order to show cause. In 2006, petitioner was convicted of multiple counts of second degree robbery and assault with a firearm as well as of evading a peace officer and being a felon in possession of a firearm and sentenced to a term of 55 years and eight months, the jury having found true petitioner had suffered a prior serious felony conviction and that the robbery and assault counts were committed with the use of a firearm. Motion to Dismiss, p. 2, Lodged Documents 1 (Abstracts of Judgment) & 2 (Third District Court of Appeal Opinion).

Petitioner enumerates thirteen (13) grounds, including claims (1, 5, 6 & 7) of ineffective assistance of appellate counsel; claims (2, 3 & 4) of ineffective assistance of trial counsel; claim (8) assault conviction with semi-automatic firearm must be reversed because due process was violated when trial court did not instruct jury on meaning of "semi-automatic"; claim (9) trial court error in failing to instruct jury on assault with a firearm as a lesser included offense of assault with a semi-automatic firearm; claim (10) punishment may not be imposed as to both counts 1 and 2; claim (11) Cunningham v. California*fn3 requires reversal of petitioner's aggravated sentence; claim (12) court acted in excess of its jurisdiction in imposing consecutive sentences not based on facts proven to a jury; claim (13) court's finding of independent purposes for counts 2 and 5 such that Cal. Penal Code § 654 did not apply violated petitioner's right to a jury trial and due process. Amended Petition, pp. 23-108.

Motion to Dismiss

Respondent moves to dismiss the amended petition on grounds of untimeliness. Motion to Dismiss (MTD), pp. 1-5.

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.

Following the May 5, 2006, sentencing petitioner appealed, and on April 8, 2008 (nearly two years after imposition of a sentence of 55 years and eight months), the Third District Court of Appeal modified the sentence to 53 years and eight months. MTD, p. 2, Lodged Documents (Lod. Docs.) 1 (abstracts of judgment) & 2 (Third District Court of Appeal decision). When petitioner sought review in the California Supreme Court on May 14, 2008, review was denied on July 9, 2008, without prejudice to any relief to which petitioner might be entitled following the United States Supreme Court decision Oregon v. Ice,*fn4 No. 07-901. Id., Lod. Docs. 3 (Petition for Review) & 4 (California Supreme Court denial). Petitioner filed a petition for writ of certiorari in the U.S. Supreme Court on September 25, 2008, which was denied on January 21, 2009. Id., Lod. Docs. 5 (Petition for Writ of Cert) & 6 (docket sheet showing USSC denial of petition for writ of cert).

As respondent observes, the time for seeking direct review came to an end upon denial of the petition for writ of certiorari. MTD, p. 4, citing Giesberg v. Cockrell, 288 F.3d 268 (5th Cir. 2002); United States v. Thomas, 203 F.3d 350, 356 (5th Cir. 2000). See also, e.g., United States v. Seegers, 271 F.3d 181 (4th Cir. 2001); Horton v. United States, 244 F.3d 546, 551 (7th Cir. 2001); United States v. Willis, 202 F.3d 1279, 1281 (10th Cir. 2000). In addition, a Ninth Circuit panel has found, in an unpublished decision, that a state prisoner's conviction and sentence became final on the date the United States Supreme court denied petitioner's writ of ...


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