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Johalmo Robles v. Matthew Cate

October 3, 2011

JOHALMO ROBLES, PETITIONER,
v.
MATTHEW CATE, RESPONDENTS.



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

ORDER

I. Introduction

Petitioner is a prisoner proceeding with retained counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case is before the undersigned pursuant to both parties consent. Docs. 8, 10. Pending before the court is respondent's May 31, 2011, motion to dismiss on the grounds that this action is barred by the statute of limitations and is unexhausted. Doc. 16.

Petitioner pled nolo contendere to knowingly receiving stolen property and was sentenced to a prison term of one year and four months. Petitioner completed his term of imprisonment and was released on parole to the custody of the United States Immigrations and Customs Enforcement (ICE) who obtained an order removing petitioner based on this conviction, as petitioner is not a US citizen. The sole claim in the petition is that counsel was ineffective for failing to explain to petitioner the immigration deportation consequences of his plea. For the reasons that follow it is ordered 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 pled nolo contendere to knowingly receiving stolen property and was sentenced to a determinate state prison term of one year and four months on July 27, 2009. Lodged Document (Lod. Doc.) 1. Petitioner did not appeal the conviction. Therefore, petitioner's conviction became final 60 days later on September 25, 2009, upon the expiration of time to seek review. Cal. Rules of Court 8.308(a); Lewis v. Mitchell, 173 F.Supp.2d 1057, 1060 (C.D. Cal. 2001) (discussing former California Rules of Court Rule 31(d)) .

Time began to run the next day, on September 26, 2009. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is, until September 25, 2010, to file a timely federal petition, absent applicable tolling. The instant action, filed December 21, 2010, is ...


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