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Luis Pacheco v. Kathleen Allison

February 24, 2012

LUIS PACHECO, PETITIONER,
v.
KATHLEEN ALLISON,
RESPONDENT.



ORDER AND FINDINGS & RECOMMENDATIONS

/

Petitioner, a state prisoner proceeding through counsel, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss this action as barred by the statute of limitations. Petitioner opposes the motion. Respondent's motion is set for hearing on March 1, 2012. The court has determined that the matter shall be submitted upon the record and briefs on file and accordingly, the date for hearing of this matter shall be vacated. Local Rule 230.

DISCUSSION

A. The Petition is Untimely

Respondent seeks dismissal on the ground that the petition is untimely. Petitioner asserts his petition is timely.

Section 2244(d)(1) of title 28 of the United States Code provides:

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.

28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that "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" the limitations period. 28 U.S.C. § 2244(d)(2).

For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:

1. On March 19, 2008, a jury convicted petitioner of one count of first degree murder with an enhancement for ...


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