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Thomas L. Hennagan v. James D. Hartley

June 4, 2012

THOMAS L. HENNAGAN, JR., PETITIONER,
v.
JAMES D. HARTLEY, RESPONDENT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondent's December 6, 2011 motion to dismiss the petition as untimely filed. (Dkt. No. 14.) Petitioner has filed an opposition to that motion and respondent has filed a reply. (Dkt. Nos. 18, 19.) For the reasons discussed below, the undersigned will recommend that respondent's motion to dismiss be granted.

BACKGROUND

In 2006, petitioner pled no contest to engaging in lewd and lascivious conduct with a child under the age of fourteen in violation of California Penal Code section 288(a). He was sentenced to the upper term of eight years in state prison. (Lod. Doc. 1-2.)*fn1 The imposition of the upper term was a stipulated sentence, expressly agreed to by defendant. (Lod. Doc. 2 at 1-2.) On June 12, 2007, the California Court of Appeal, Third Appellate District, affirmed the judgment. (Lod. Doc. 2.) Petitioner did not seek review in the California Supreme Court.

Petitioner subsequently filed three post-conviction collateral challenges to his conviction in the state courts:

On December 22, 2009, he filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (Lod. Doc. 3.) On February 26, 2010, the superior court denied the petition as untimely. (Lod. Doc. 4.)

On April 8, 2010, he filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. (Lod. Doc. 5.) On April 15, 2010, the court of appeal summarily denied the petition. (Lod. Doc. 6.)

On May 6, 2010, he filed a petition for writ of habeas corpus in the California Supreme Court. (Lod. Doc. 7.) On February 23, 2011, the court denied the petition as untimely, citing In re Robbins, 18 Cal. 44th 770, 780 (1998) and In re Clark, 5 Cal. 4th 750, 797-798 (1993). (Lod. Doc. 8.)

Petitioner constructively filed the instant action on May 9, 2011. (Dkt. No. 1.)

STATUTE OF LIMITATIONS UNDER THE AEDPA

Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244 provides as follows:

(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 ...


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