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Damien W. Stroud v. Rick Hill

June 8, 2012

DAMIEN W. STROUD, PETITIONER,
v.
RICK HILL, WARDEN*FN1 , RESPONDENT.



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

ORDER

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondent's February 6, 2012 motion to dismiss the petition as untimely filed. (Dkt. No. 9.) Petitioner has filed an opposition to that motion and respondent has filed a reply. (Dkt. Nos. 15, 16.) The parties have consented to this court's jurisdiction. (Dkt. Nos. 4, 8.) For the reasons discussed below, the undersigned will grant respondent's motion to dismiss.

PROCEDURAL HISTORY

Petitioner pled no contest in San Joaquin County Superior Court to two counts of second degree robbery in violation of California Penal Code section 211 and a sentencing enhancement for personal use of a firearm in violation of section 12022.53(B). On July 18, 2008, he was sentenced to a determinate state prison term of thirteen years. (Dkt. No. 1 ("Ptn.") at 1; Lod. Doc. 1.)*fn1

Petitioner did not appeal the judgment. However, he filed three post-conviction collateral challenges to the judgment in the state courts:

On January 8, 2010, he filed a petition for writ of habeas corpus in the San Joaquin County Superior Court. (Lod. Doc. 2.) On January 14, 2010, the superior court denied the petition in a reasoned opinion. (Lod. Doc. 3.)

On March 4, 2010, he constructively filed*fn2 a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. (Lod. Doc. 4.) On March 11, 2010, the court of appeal summarily denied the petition. (Lod. Doc. 4.)

On April 18, 2010, he constructively filed a petition for writ of habeas corpus in the California Supreme Court. (Lod. Doc. 6.) On November 10, 2010, the supreme court summarily denied the petition. (Lod. Doc. 7.)

Petitioner constructively filed the instant action on September 26, 2011; however, it was not docketed until November 1, 2011. (Ptn. at 6.) Petitioner claims that the personal firearm enhancement that accounts for ten years of his sentence is unconstitutional because the judge at his preliminary hearing found insufficient evidence to support this enhancement. Petitioner also claims that his trial counsel rendered ineffective assistance under the Sixth Amendment for failing to "properly investigate facts to petitioner's detriment" in connection with the firearm enhancement. (Id. at 4-5.)

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 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 ...


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