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John Bartholomew v. Gary Swarthout

March 12, 2012

JOHN BARTHOLOMEW, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.



ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is proceeding before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). See Consents filed June 7, 2011 and July 19, 2011. Petitioner challenges his 2006 conviction on charges of manufacturing methamphetamine in violation of state law. Respondent has moved to dismiss the action as barred by the statute of limitations. Petitioner opposes the motion on the ground that he is innocent of the charges.

Section 2244(d) of Title 28 of the United States Court contains a statute of limitations for filing a habeas petition in federal court: (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. The following facts are relevant to the statute of limitations analysis.

1. On July 6, 2006, petitioner was convicted of manufacturing methamphetamine and possession of ephedrine with intent to use it to manufacture methamphetamine, in violation of state law. Petitioner was sentenced to eighteen years in prison.

2. On April 4, 2008, the California Court of Appeal for the Third Appellate District affirmed petitioner's conviction.

3. On June 18, 2008, the California Supreme Court denied review.

4. On December 8, 2008, the United States Supreme Court denied petitioner's petition for writ of certiorari.

5. On July 1, 2009, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court.*fn1 On September 2, 2009, that petition was denied as untimely. See Lodged Document No. 7.

6. On September 13, 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District.*fn2 That petition was denied in an order filed October 1, 2009 that contained no statement of reasons for the decision. See Lodged Document No. 9.

7. On October 20, 2009, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. That petition was denied by order filed ...


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