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Ronald V. Smith v. Scott Frakes and Kamala D. Harris

March 1, 2012

RONALD V. SMITH, PETITIONER,
v.
SCOTT FRAKES AND KAMALA D. HARRIS,
RESPONDENTS.



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

ORDER AND FINDINGS & RECOMMENDATIONS

I. Introduction

Petitioner is a Washington state prisoner,*fn1 proceeding without counsel, with an application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondents' motion to dismiss the pending habeas petition as barred by the statute of limitations. For the reasons set forth below, respondents' motion should be granted.

II. Legal Standards

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted. Section 2244(d)(1) of Title 8 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).

III. Chronology

For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows: 1. On May 1, 2008, in the Yolo County Superior Court, petitioner pled guilty to first degree murder with special circumstances, and was sentenced on May 16, 2008, to an indeterminate state prison term of life without the possibility of parole. (Respondents' Lodged Document ("LD") 1.) Petitioner did not appeal the conviction.

2. On March 9, 2009,*fn2 petitioner filed a petition for writ of mandamus in Smith v. People of the State of California, 2:09-cv-0652 GEB EFB P.*fn3 On May 14, 2010, the petition was denied for lack of jurisdiction. Id., Dkt. No. 12.

3. On July 1, 2010, pursuant to Rule 3(d) of the Federal Rules Governing Section 2254 Cases, petitioner filed a petition for writ of habeas corpus in Smith v. Franks, 2:10-cv-1918 JAM KJM P. In the August 10, 2010 findings and recommendations in that case, petitioner was cautioned concerning the one year statute of limitations for filing non-capital habeas corpus petitions in federal court. Id., Dkt. No. 4 at 2 n.2. On ...


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