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Adrian Douglass v. Melissa Lea

December 19, 2011

ADRIAN DOUGLASS,
PETITIONER,
v.
MELISSA LEA,*FN1 RESPONDENT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

Petitioner filed this petition for a writ of habeas corpus on July 18, 2011.*fn2 Respondent filed a motion to dismiss the petition on the ground that it is untimely. Petitioner did not file an opposition to the motion.*fn3

Discussion

Section 2244(d) imposes a one-year statute of limitations for the filing of habeas corpus petitions by state prisoners. 28 U.S.C. § 2244(d). It provides:

(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.

(2) 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 any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1) & (2).

Petitioner entered into a plea agreement, petitioner pleaded no contest to attempted murder, and petitioner admitted that he personally used a firearm and inflicted great bodily injury in the commission of the offense. [Petition at 2; Lodged Documents ("LD") 1 & 2]. Petitioner also admitted that he had a prior conviction of a serious or violent felony within the meaning of California's Three Strikes Law. [Petition at 2]. On June 14, 2006, petitioner was sentenced to state prison for a term of 31 years. The sentence consisted of the upper term for the attempted murder (nine years), doubled pursuant to California's Three Strikes Law, plus an additional ten years for the firearm enhancement and three years for the great bodily injury enhancement. [Petition at 2; LDs 1 & 2]. Because petitioner did not file a direct appeal,*fn4 his conviction became final on August 13, 2006, when the time to file an appeal expired. See Cal.Rules Court 30.1(a); see also Smith v. Duncan, 297 F.3d 809, 813 (9th Cir. 2002). Petitioner had one year, or until August 13, 2007, to file his federal habeas petition. See Patterson v. Stewart, 251 F.3d 1243, 1245-1246 (9th Cir.), cert. denied, 534 U.S. 978 (2001); Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 & 523 U.S. 1061 (1998), overruled on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998)(en banc), cert. denied, 526 U.S. 1060 (1999).

This petition was not filed until July 18, 2011, almost four years after the limitation period expired. Absent grounds for statutory or equitable tolling of the limitation period, the petition is time-barred.

Statutory Tolling

The limitation period does not run while a properly filed state application for post-conviction relief is pending. 28 U.S.C. ยง 2244(d)(2). See Carey ...


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