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Grant Scott Parkison, Jr v. Tim Virga

February 27, 2013

GRANT SCOTT PARKISON, JR., PETITIONER,
v.
TIM VIRGA, RESPONDENT.



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

ORDER

Petitioner is a state prisoner, proceeding without counsel, in this habeas corpus action filed on May 11, 2012, pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 conviction and sentencing. This matter is before the court on respondent's motion to dismiss, on the ground that petitioner initiated this action beyond the one-year statute of limitations, and is not entitled to equitable tolling. See 28 U.S.C. § 2244(d). Respondent alternatively contends that petitioner failed to exhaust one of the two claims asserted in his petition. Petitioner opposes respondent's motion pursuant to his contention that he is entitled to equitable tolling, based on his medical condition and the allegedly incorrect advice of his appellate counsel.

For the reasons set forth below, the court grants respondent's motion to dismiss.

I. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides in pertinent part:

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 .

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 limitation period. 28 U.S.C. § 2244(d)(2).

The relevant chronology in this case is as follows:

1. On June 12, 2008, petitioner was convicted of involuntary manslaughter; a sentencing enhancement was found to be true. (Abstract of Judgment, Butte County Superior Court, Case No. CM027413 (Resp. Lodged Doc. 1).)

2. On July 8, 2008, petitioner was sentenced to state prison for a determinate term of fourteen years. (Id.)

3. On January 28, 2010, pursuant to petitioner's timely appeal of his conviction and sentence, the California Court of Appeal, Third Appellate District affirmed the superior court's judgment and sentence. (Opinion, Calif. Court of Appeal, Third App. Dist., Case No. C059407 (Resp. Lodged Doc. 2).)

4. On April 14, 2010, pursuant to petitioner's Petition for Review filed February 23, 2010 (Resp. Lodged Doc. 3), the California Supreme Court summarily denied review. (Order, Calif. ...


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