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Randy Dean Pierce v. R.H. Trimble

September 17, 2012

RANDY DEAN PIERCE, PETITIONER,
v.
R.H. TRIMBLE, RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

I. Introduction

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently pending before the court is respondent's motion to dismiss this case as it was filed beyond the one-year statute of limitations and is unexhausted, filed on May 14, 2012. Doc. 9. This case is before the undersigned pursuant to both parties' consent. Docs. 6, 8.

II. Analysis

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

Petitioner was convicted of second degree murder and was sentenced to an indeterminate state prison term of fifteen years to life on October 25, 2006. Lodged Document (Lod. Doc.) 1. On March 24, 2009, the California Court of Appeal affirmed the judgment. Lod. Doc. 2. The California Supreme Court denied review on June 24, 2009. Lod. Doc. 3. Petitioner's conviction became final 90 days later, on September 22, 2009, when the time to file a petition for writ of certiorari in the United States Supreme Court expired. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). Time began to run the next day, on September 23, 2009. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is, until September 22, 2010, to file a timely federal petition, absent applicable tolling. The instant action, filed February 22, 2012,*fn1 is not timely unless petitioner is entitled to statutory or equitable tolling.

Petitioner filed three state post-conviction collateral actions:

1. December 21, 2009: First habeas petition filed in Yolo County Superior Court. Lod. Doc. 4. The petition was denied in a reasoned opinion on March 19, 2010. Lod. Doc. 5.

2. April 24, 2010: Second habeas petition filed in California Court of Appeal, Third Appellate District. Lod. Doc. 6. The petition was denied without comment ...


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