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George Teal Powell v. R. H. Trimble

December 5, 2011

GEORGE TEAL POWELL, PETITIONER,
v.
R. H. TRIMBLE,
RESPONDENT.



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

ORDER & 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 September 9, 2011, motion to dismiss on the grounds that this action is barred by the statute of limitations. Doc. 9. Petitioner filed an opposition on November 16, 2011, and respondent filed a reply. Docs. 13, 18. For the reasons that follow, the undersigned recommends that the motion to dismiss be granted and this case closed.

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 was convicted of attempted premeditated murder, aggravated assault and shooting into an inhabited dwelling. Motion to Dismiss (MTD), Exh. A. Petitioner was sentenced to state prison for a term of 35 years to life. Id. On July 9, 2008, the California Court of Appeal affirmed the judgment. Id. Petitioner did not seek review in the California Supreme Court. Petitioner's conviction became final 40 days later, on August 17, 2008, when the time to seek review with the California Supreme Court expired. See Smith v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002) (limitation period began running day after time to seek discretionary review of California Court of Appeal's decision in the Supreme Court of California expired, which was forty days after the Court of Appeal filed its opinion) (citing Cal. Rules of Court 24(a), 28(b), 45(a); Cal. Civ. Proc. Code § 12a)*fn1 . Time began to run the next day, on August 18, 2008. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is, until August 17, 2009, to file a timely federal petition, absent applicable tolling. The instant action, filed July 18, 2011,*fn2 is not timely unless petitioner is entitled to statutory or equitable tolling.

Petitioner filed four state post-conviction collateral actions:*fn3

1. July 28, 2008: First habeas petition filed in California Court of Appeal, First Appellate District. MTD, Exh. B. The petition was denied on August 5, 2008. Id.

2. August 18, 2009: Second petition filed in the Superior Court of Solano County. Opposition, Appendix 1. The petition was denied in a ...


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