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Kenneth Wayne Chance v. M. Martell

September 12, 2011

KENNETH WAYNE CHANCE, PETITIONER,
v.
M. MARTELL,
RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the original petition file stamped February 2, 2011.*fn1 Petitioner challenges his 2004 conviction for attempted murder, assault with a firearm upon a police officer, possession of a firearm by a felon, and possession of ammunition by a person prohibited from possessing a firearm. Petitioner raises the following claims: 1) jury misconduct; 2) insufficient evidence; 3) ineffective assistance of counsel; 4) ineffective assistance of appellate counsel.

Pending before the court is respondent's motion to dismiss on grounds that this action is barred by the statute of limitations. After carefully reviewing the record, the undersigned recommends that respondent's motion be granted.

II. Discussion

A. When Petitioner's Conviction Became Final

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.

On July 20, 2006, the California Court of Appeal reversed petitioner's conviction for assault on a peace officer and remanded the case for resentencing. (Respondent's Lodged Document 2.) On August 18, 2008, the California Supreme Court reversed the state appellate court's judgment reversing petitioner's conviction for assault on a peace officer. (Respondent's Lodged Document 7.)

On March 20, 2009, the Superior Court amended its abstract of judgment in accordance with the opinions of the California Court of Appeal and California Supreme Court. (Respondent's Lodged Document 8.) Petitioner did not appeal the amended judgment.

Petitioner's conviction became final sixty days after the March 20, 2009 entry of amended judgment by the trial court, i.e. on May 19, 2009. See Cal. Rule of Court 8.308(a) (former Rule 30.1). The statue of limitations began running the following day, i.e. on May 20, 2009. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year from that date to file a timely federal habeas corpus petition, i.e. until May 19, 2010. The instant action is not timely unless petitioner is entitled to statutory or equitable tolling.

B. Statutory Tolling

The period of limitation is tolled while a "properly filed" application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d)(2). Once a petitioner begins state collateral proceedings, a state habeas petition is "pending" during a full round of review in the state courts, including the time between a lower court decision and the filing of a new petition in a higher court, as long as the intervals between the filing of those petitions are "reasonable." Carey v. Saffold, 536 U.S. 214, 222-24 (2002).

Pursuant to the mailbox rule, petitioner filed his first state habeas corpus petition in the El Dorado County Superior Court on December 9, 2008. (Respondent's Lodged Document 9.) On January 13, 2009, the Superior Court denied this petition by order addressing ...


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