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Brandon Alexander v. Mike Mcdonald

April 30, 2012

BRANDON ALEXANDER FERNANDEZ, PETITIONER,
v.
MIKE MCDONALD, ET AL., RESPONDENTS.



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

ORDER

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both petitioner and respondent consented to the jurisdiction of the undersigned. (Dkt. Nos. 4, 8.)

This action is proceeding on the original petition filed October 9, 2011, pursuant to the mailbox rule. (Dkt. No. 1 at 39 of 105.) Petitioner challenges his 2005 conviction for second degree murder on grounds that the trial court's imposition of an indeterminate sentence of 15 years to life violated his plea agreement. Petitioner alleges that pursuant to the plea agreement, he was to receive a determinate sentence of 15 years with the possibility to earn 50% conduct credits. Petitioner alleges that the district attorney and his lawyer told him that he would serve 15 years at most, with early possible release after serving 7 1/2 years if he behaved himself in prison. Petitioner alleges that his lawyer told him that when the court and plea agreement stated that he was sentenced to 15 years to life, the "life" referred to the time he could possibly be on parole, but that he would serve a maximum of 15 years in prison.

Pending before the court is respondent's January 3, 2012 motion to dismiss on grounds that this action is barred by the statute of limitations. (Dkt. No. 9.) After carefully considering the record, the undersigned grants respondent's motion for the reasons discussed herein.

II. Discussion

Statute of Limitations

The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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.

On March 9, 2005, petitioner was sentenced to 15 years to life. (Respondent's Lodged Document No. 1.) Petitioner did not appeal his conviction. Petitioner's conviction became final sixty days later when the time for filing a direct appeal expired, i.e. on May 8, 2005. See Cal. Rule of Court 8.308(a) (former Rule 30.1). The statute of limitations began running the following day, i.e. on May 9, 2005. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year from that date to file a timely federal habeas ...


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