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Tyrea Kinte Hicks v. James A. Yates

February 22, 2013

TYREA KINTE HICKS, PETITIONER,
v.
JAMES A. YATES, RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a Sacramento County Superior Court jury on charges of possession of a firearm and possession of ammunition by a felon. He was sentenced to twenty-five years to life imprisonment with the possibility of parole. Petitioner raises the following four claims in his federal habeas petition pending before this court: (1) he was subjected to an unreasonable search and seizure without a warrant; (2) he was denied a fair trial when the prosecution exercised challenges on three prospective jurors who are the same race as petitioner; (3) the trial court abused its discretion when it refused to strike any of his prior convictions from consideration under California's Three-Strikes Law; and (4) his Three-Strikes Law sentence violates the Eighth Amendment. Respondent has filed a motion to dismiss the pending petition as untimely under the applicable statute of limitations, or alternatively, as a mixed petition. For the reasons set forth below, the court concludes that respondent's motion to dismiss the petition as untimely should be granted.

PROCEDURAL HISTORY

I. State Court Proceedings

On September 2, 2008, a Sacramento County Superior Court jury found petitioner guilty of being a convicted felon in possession of a firearm and ammunition. The jury also found that petitioner had suffered four prior serious felony convictions. (Lod. Doc.*fn1 1-2.) Thereafter, petitioner was sentenced, pursuant to California's Three-Strikes Law, to a state prison term of twenty-five years to life with the possibility of parole. (Id.)

Petitioner appealed from his judgment of conviction. On December 17, 2009, the California Court of Appeal for the Third Appellate District modified the judgment of conviction so as to stay imposition of the sentence on the possession of ammunition count. (Lod. Doc. 2.) The judgment was otherwise affirmed as modified. (Id.)

On January 19, 2010, petitioner filed a petition for review with the California Supreme Court. (Lod. Doc. 3.) On February 24, 2010, that petition for review was summarily denied. (Lod. Doc. 4.)

Petitioner did not file any post-conviction collateral challenges to the judgment in state court.

II. Federal Proceedings

Petitioner's federal petition for writ of habeas corpus was signed on June 3, 2011. (Doc. No. 1 at 15.) His proof of service also indicates that on June 3, 2011, petitioner delivered his federal petition and application to proceed in forma pauperis to prison officials at Pleasant Valley State Prison for mailing to this court. (Id. at 62.) The habeas petition, however, was not received and filed by this court until July 29, 2011.

STATUTE OF LIMITATIONS UNDER AEDPA

Petitioner filed his 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 ...


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