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Jorge Lopez v. M.D. Mcdonald

June 28, 2012

JORGE LOPEZ, PETITIONER,
v.
M.D. MCDONALD, WARDEN, 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 March 8, 2012 motion to dismiss the petition as time-barred. (Dkt. No. 9.) Petitioner has filed an opposition to that motion, and respondent has filed a reply. (Dkt. Nos. 11, 12.) The parties have consented to this court's jurisdiction. (Dkt. Nos. 3, 8.) For the reasons discussed below, the undersigned will grant respondent's motion to dismiss.

PROCEDURAL HISTORY

In April 2008, following a jury trial in the Sacramento County Superior Court, petitioner was convicted of first degree murder with a firearm enhancement. He was sentenced to an indeterminate state prison term of fifty years to life. (Lod. Docs. 1, 2 at 6.)*fn1

On February 11, 2010, the California Court of Appeal, Third Appellate District, affirmed the judgment. (Lod. Doc. 2.) Petitioner sought review in the California Supreme Court, which was denied on May 20, 2010. (Lod. Docs. 3, 4.) Petitioner did not file any pro se post-conviction challenges to the judgment in the state courts.

Petitioner constructively filed the instant petition on November 27, 2011. (Dkt. No. 1 ("Ptn.").)

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 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 ...


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