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Richard Cordero v. Michael D. Mcdonald

August 5, 2011

RICHARD CORDERO, PETITIONER,
v.
MICHAEL D. MCDONALD, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him in the Tehama County Superior Court in 2007 on charges of leaving the scene of an accident, driving under the influence causing injury, and reckless driving with great bodily injury. This matter is before the court on respondent's motion to dismiss this federal habeas action on the grounds that it is barred by the applicable statute of limitations.

Petitioner did not timely file an opposition to the motion. On April 4, 2011, this court issued findings and recommendations recommending that the motion be granted. On May 16, 2011, after receiving an extension of time to do so, petitioner filed objections to those findings and recommendations along with a proposed opposition to the motion to dismiss. By order filed May 26, 2011, the April 4, 2011 findings and recommendations were vacated, petitioner was granted twenty-one days in which to file evidence in support of his assertions concerning lockdowns at High Desert State Prison (High Desert) and the effect of said lockdowns on his access to the prison law library and legal materials, and respondent was granted fourteen days thereafter in which to file and serve a reply brief in support of the motion to dismiss. The parties have now filed their respective briefs and evidence in support of their respective positions.

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 February 26, 2007, petitioner was sentenced by the Tehama County Superior Court to twenty three years in state prison following his January 30, 2007 conviction on the charges listed above.

2. On March 13, 2008, the California Court of Appeal for the Third Appellate District deleted a fine that had been imposed as part of petitioner's sentence and otherwise affirmed the judgment on appeal.

3. On May 13, 2008, petitioner filed a petition for writ of habeas corpus in the Tehama County Superior Court. That petition was denied by order filed May 16, 2008.

6. On March 11, 2009*fn1 , petitioner filed another petition for writ of habeas corpus in the Tehama County Superior Court. That petition was denied by order filed April 3, 2009.

7. On June 9, 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. That petition ...


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