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Roxanne Corrine Perdigone v. Tina Hornbeck

October 5, 2012

ROXANNE CORRINE PERDIGONE, PETITIONER,
v.
TINA HORNBECK, WARDEN,
RESPONDENT.



ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a Sacramento County Superior Court jury of first degree murder, assault with a firearm and kidnapping and the jury found that she used a firearm in the commission of these offenses. Petitioner also pled guilty to other charges, namely one count of assault with a firearm and four counts of being a convicted misdemeanant in possession of a firearm. She also admitted a firearms' use allegation. She was sentenced to twenty-five years to life in state prison plus twenty years. Petitioner's sole claim for federal habeas relief is that she received ineffective assistance of counsel as a result of her counsel's failure to locate and subpoena Roberta Bates and Tamesha Johnson and guarantee their appearance at trial. Respondent has filed a motion to dismiss the pending petition as untimely filed under the applicable statute of limitations. For the reasons set forth below, the court concludes that respondent's motion to dismiss should be granted.

I. PROCEDURAL HISTORY

A. State Court Proceedings

After petitioner's judgment of conviction was entered she appealed to the California Court of Appeal for the Third Appellate District. That court affirmed the judgment of conviction on February 3, 1997. (See Resp't's Lodged Doc. 2.) Petitioner did not file a petition for review with the California Supreme Court.

On June 24, 2004, petitioner, proceeding through counsel, filed a state habeas petition in the Sacramento County Superior Court. (See id. Doc. 3.) On July 29, 2004, that court denied the petition, stating that it was untimely. (See id. Doc. 4.) On March 4, 2010, petitioner (now being represented by current federal habeas counsel, Mr. Bonneau) filed another state habeas petition in the Sacramento County Superior Court. (See id. Doc. 5.) That court denied the state habeas petition on April 20, 2010 stating that it was both successive and untimely. (See id. Doc. 6.) Petitioner then filed a state habeas petition in the California Court of Appeal for the Third Appellate District on June 22, 2010. (See id. Doc. 7.) The California Court of Appeal summarily denied that petition on June 24, 2010. (See id. Doc. 8.) Next, petitioner filed a state habeas petition in the California Supreme Court on July 28, 2010. (See id. Doc. 9.) The California Supreme Court summarily denied that petition on April 27, 2011.

B. Federal Court Proceedings

Counsel on behalf of petitioner filed the federal habeas petition in this court on December 29, 2011. Respondent filed a motion to dismiss on March 5, 2012. Petitioner filed a response in opposition to the motion to dismiss on March 21, 2012 and then a supplemental response in opposition on April 30, 2012. Respondent filed a reply on May 4, 2012. A hearing on the motion to dismiss was held on May 11, 2012.

II. STATUTE OF LIMITATIONS UNDER AEDPA

Petitioner filed her federal habeas petition after April 24, 1996, therefore, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to the petition. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). The AEDPA imposes a one-year statute of limitations on the filing of federal habeas petitions. More specifically, 28 U.S.C. § 2244(d) states as follows:

(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 ...


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