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Alaren L. Frazier v. W.J. Sullivan

September 7, 2012

ALAREN L. FRAZIER, PETITIONER,
v.
W.J. SULLIVAN, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondent's motion to dismiss the pending habeas petition as barred by the statute of limitations. Petitioner did not file a timely opposition. On July 26, 2012, the court directed petitioner to show cause why his failure to oppose the motion should not be deemed a waiver of opposition to the motion, and provided petitioner an additional thirty days in which to file an opposition. Petitioner did not respond to the order to show cause or file an opposition to the motion. For the reasons set forth below, the undersigned finds that respondent's motion to dismiss should be granted.

II. Statutory Filing Deadlines

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted. Section 2244(d)(1) of Title 8 of the United States Code provides:

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.

28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that "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 toward" the limitations period. 28 U.S.C. § 2244(d)(2).

For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:

1. Petitioner was convicted on January 18, 2007, of first degree robbery, first degree residential burglary, felon in possession of a firearm, possession of a controlled substance, two counts of vehicle theft, and five counts of receiving stolen property. (Respondent's Lodged Document ("LD") No. 1.) Petitioner was sentenced to 36 years to life in state prison. (Id.)

2. Petitioner filed a timely appeal of the conviction. On January 30, 2009, the California Court of Appeal for the Third Appellate District reversed one of the receiving stolen property convictions, reversed the sentence imposed for the two vehicle theft convictions, and remanded the case for ...


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