The opinion of the court was delivered by: Present: Honorable Suzanne H. Segal, United States Magistrate Judge
DOCKET ENTRY: ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED AS UNTIMELY
Jacob Yerke None None Deputy Clerk Court Reporter/Recorder Tape No. ATTORNEYS PRESENT FOR PETITIONER: ATTORNEYS PRESENT FOR RESPONDENT:
None Present None Present
PROCEEDINGS: (IN CHAMBERS)
On December 18, 2012, Fredrick Luna ("Petitioner") filed a Petition for Writ of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254.*fn1 However, the Petition appears to be untimely.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") applies to the instant Petition because Petitioner filed it after AEDPA's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 2068, 138 L. Ed. 2d 481 (1997). Under 28 U.S.C. § 2244(d)(1), state prisoners have one year in which to file their federal habeas petitions. Generally, the one-year limitations period begins to 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)(A)-(D).
A petitioner ordinarily has one year from the date that his conviction becomes final to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). A conviction becomes final with "the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). However, where a petitioner files a state habeas petition before direct review has concluded, the § 2244(d) statute of limitations begins running the day after the denial of that petition. Campbell v. Henry, 614 F.3d 1056, 1059 n.1 (9th Cir. 2010). Here, Petitioner filed his first state habeas petition before his conviction became final on direct review. (See Petition at 2-3). According to Petitioner, Petitioner's first state habeas petition was denied by the Los Angeles Superior Court on October 4, 2010. (Petition at 4).
Assuming that petition was properly filed, the § 2244(d) statute of limitations began running the next day, October 5, 2010. Campbell, 614 F.3d at 1059 n.1. Plaintiff had 365 days from that date to file his federal habeas petition. Id. However, Plaintiff filed the instant Petition on December 18, 2012. Absent ...