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Kenneth Wayne Chance v. M. Martell

January 11, 2012

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



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

ORDER

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 filed February 2, 2011.

On May 6, 2011, respondent filed a motion to dismiss on grounds that the petition was barred by the statute of limitations. On September 13, 2011, the undersigned recommended that respondent's motion be granted. On December 12, 2011, petitioner filed objections to the findings and recommendations. For the following reasons, further briefing is ordered regarding the issue of equitable tolling.

Background

A one year statute of limitations runs from the date petitioner's conviction became final. 28 U.S.C. § 2244(d)(1). In the September 13, 2011 findings and recommendations, the undersigned found that petitioner's conviction became final on May 20, 2009. Petitioner had one year from that date to file a timely federal habeas corpus petition, i.e., until May 19, 2010. The undersigned found that this action was not timely unless petitioner was entitled to statutory or equitable tolling.

In the September 13, 2011 findings and recommendations, the undersigned found that petitioner was entitled to six days of statutory tolling. The undersigned further found that petitioner was not entitled to equitable tolling. Based on these findings, the undersigned recommended that respondent's motion to dismiss be granted.

As discussed above, in his objections to the findings and recommendations petitioner makes further arguments in support of equitable tolling which the undersigned addresses herein.

Discussion

The following background regarding petitioner's state appellate and post-conviction filings is relevant to the issue of equitable tolling.

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. On August 18, 2008, the California Supreme Court reversed the state appellate court's judgment that had reversed petitioner's conviction for assault on a peace officer.

On March 20, 2009, the El Dorado County Superior Court amended its abstract of judgment in accordance with the opinions of the California Court of Appeal and California Supreme Court. Petitioner did not appeal the amended judgment.

On December 9, 2008, petitioner filed his first habeas corpus petition in the El Dorado County Superior Court. On January 13, 2009, the Superior Court denied this petition by order addressing the merits of petitioner's claims.

On June 26, 2009, petitioner filed a second habeas corpus petition in the El Dorado County Superior Court. On July 22, 2009, the Superior Court denied this petition on grounds that it was identical to the petition previously filed.

On March 20, 2010, petitioner filed a habeas corpus petition in the California Court of Appeal. On March 25, 2010, the California Court of Appeal denied ...


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