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Richard Thompson v. Knipp

July 20, 2012

RICHARD THOMPSON, PETITIONER,
v.
KNIPP, RESPONDENT.



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

FINDINGS & RECOMMENDATIONS

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 June 1, 2012 motion to dismiss the petition as untimely filed. (Dkt. No. 11.) Petitioner has filed an opposition to the motion, and respondent has filed a reply. (Dkt. Nos. 13, 14.) For the reasons discussed below, the undersigned will recommend that respondent's motion be granted.

PROCEDURAL HISTORY

On November 29, 1999, petitioner pled guilty in the San Joaquin County Superior Court to fifteen counts of lewd acts upon a child. He was sentenced to a state prison term of twenty-five years to life. (Lod. Doc. 1.)*fn1 Petitioner did not appeal this sentence.

In a sentence modification hearing held on April 5, 2004, petitioner was granted permission to withdraw his guilty plea to counts as to five of those counts, specifically counts 17, 18, 19, 20, and 22. His sentence of twenty-five years to life "remain[ed] as ordered" on November 29, 1999, as it was based on the "habitual sexual offender" provision of California Penal Code section 667.71, to which petitioner had pled on the remaining counts. (Lod. Doc. 2; Lod. Doc. 5.) An amended abstract of judgment, filed on May 3, 2004, reflected the dismissal of these five counts, nun pro tunc to November 29, 1999. (Lod. Doc. 3.) Petitioner did not appeal the amended judgment.

Petitioner subsequently filed three petitions for writ of habeas corpus in the state courts:

On November 23, 2010, he filed a petition in the San Joaquin County Superior Court. The petition was denied on January 26, 2011, citing In re Robbins, 18 Cal. 4th 770 (1998) and In re Clark, 6 Cal. 4th 750, 774. (Lod. Docs. 4, 5.)

On March 8, 2011, he filed a petition in the California Court of Appeal, Third Appellate District, which was denied on March 17, 2011. (Lod. Docs. 6, 7.)

On September 21, 2011, he constructively filed a petition in the California Supreme Court, which was denied on February 15, 2012. (Lod. Docs. 8,9.)

Petitioner constructively filed the instant federal petition on March 14, 2012.*fn2

(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 ...


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