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Danny M. Coston v. M. D. Mcdonnell

August 24, 2012

DANNY M. COSTON, PETITIONER,
v.
M. D. MCDONNELL, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the October 5, 2011 amended petition. Dckt. No. 9. Respondent moves to dismiss on the grounds that the petition is untimely and it fails to state a federal claim for relief. For the reasons explained below, the undersigned recommends respondent's motion be granted.

I. Procedural History

Petitioner is currently serving a sentence of 27 years to life for first degree murder. Resp.'s Mot. to Dism. ("Resp.'s MTD"), Ex. 1. On July 24, 2008, he was found guilty of a disciplinary rule violation for distribution of a controlled medication. Am. Pet., Ex. B. The following day, his violation was reduced to unauthorized possession of controlled medication, and he received 140-day forfeiture of good-time credits. Id.

Petitioner filed an administrative appeal, which was denied at the director's level on January 23, 2009. Resp.'s MTD, Ex. 3. He then filed four state collateral challenges. On August 30, 2009, petitioner filed his first state habeas petition in the Sacramento County Superior Court, which was denied on March 15, 2010. Id., Exs. 4-5. Petitioner's second state habeas petition was filed in the Sacramento County Superior Court on August 27, 2010. Id., Ex.

6. That petition was denied on October 7, 2010. Id., Ex. 7.On November 10, 2010, petitioner filed a third state habeas petition in the California Court of Appeal, Third Appellate District, which was denied on December 2, 2010. Id., Exs. 8-9. On December 12, 2010, he filed a petition for review in the California Supreme Court. Id., Ex. 10. That petition was denied on January 26, 2011. Id., Ex. 11.

Petitioner filed his federal petition in this court on March 16, 2011.*fn1 The original petition sought to challenge two separate prison disciplinary decisions, one dated May 6, 2008, designated Log No. Sac-08-1442, and the other dated July 24, 2008, designated Log No. A/S-08-03-007. Dckt. No. 1. This court dismissed the original petition with leave to amend and informed petitioner thathe may not seek relief from multiple judgments in a single federal petition. Dckt. No. 8, see Rule (2)(e), Rules Governing § 2254 Cases. Petitioner subsequently filed a first amended petition, which only challenges the July 24, 2008 decision. Dckt. No. 9 at 4.

II. Statute of Limitations

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

Where a petitioner challenges the result of a prison disciplinary decision, the statute of limitations begins running from the date on which the factual predicate of the claims could have been discovered through due diligence, i.e the day after a petitioner's administrative ...


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