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Phillip Blair Jones v. Knipp

August 10, 2011

PHILLIP BLAIR JONES, PETITIONER,
v.
KNIPP, RESPONDENT.



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

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's June 24, 2011, motion to dismiss on the grounds that this action is barred by the statute of limitations. Doc. 14. Petitioner filed an opposition on July 12, 2011, and respondent filed a reply. Docs. 18, 19. For the reasons that follow it is recommended that the motion to dismiss be granted.

II. Motion to Dismiss

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.

Petitioner entered a negotiated plea and was sentenced to a prison term of fifteen years to life for forcible oral copulation against young female family members. Motion to Dismiss (MTD), Lod. Doc. 1. On June 23, 2009, the California Court of Appeal, Third Appellate District, modified petitioner's fine, but affirmed the judgment. Lodged Document (Lod. Doc.) 1. Petitioner did not seek review in the California Supreme Court. Therefore, the Court of Appeal decision became final on July 23, 2009. Cal. Ct. R. 8.366(b)(1) ("[A] Court of Appeal decision in a proceeding under [the Criminal Appeals Chapter] ... is final in that court 30 days after filing."). The conviction itself became final 10 days later on August 2, 2009, upon the expiration of time to seek review in the California Supreme Court. Cal. Ct. R. 8.500(e)(1) ("A petition for review must be served and filed within 10 days after the Court of Appeal decision is final in that court.").

Time began to run the next day, on August 3, 2009. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is, until August 2, 2010, to file a timely federal petition, absent applicable tolling. The instant action, filed April 14, 2011,*fn1 is not timely unless petitioner is entitled to statutory or equitable tolling.*fn2

Petitioner filed three state post-conviction collateral actions:

1. April 3, 2010: First habeas petition filed in Butte County Superior Court. Lod. Doc. 2. The petition was denied ...


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