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Paul Banchich v. Raul Lopez

March 8, 2013

PAUL BANCHICH, PETITIONER,
v.
RAUL LOPEZ, RESPONDENT.



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

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss the amended habeas petition as barred by the statute of limitations, or, in the alternative, on the grounds that petitioner failed to state a federal claim for relief. For the reasons set forth below, respondent's motion to dismiss should be granted.

II. Legal Standards

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted. Section 2244(d)(1) of Title 8 of the United States Code provides:

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.

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

III. Chronology

For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows: 1. Petitioner is serving an indeterminate life sentence with the possibility of parole for a 1993 attempted murder conviction. (Dkt. No. 1 at 1.) Petitioner's minimum eligible parole date was September 29, 2005. (Dkt. No. 36-2.)

2. On January 17, 2007, petitioner was involved in an organized mass disturbance resulting in staff having to perform numerous cell extractions. (Dkt. No. 16*fn1 at 7-21.) On March 1, 2007, petitioner was found guilty of the disciplinary charge and assessed a ninety day forfeiture of credits. (Dkt. No. 16 at 13-21.)

3. Petitioner challenged the prison disciplinary through the prison's administrative appeal process in appeal HDSP-07-01657. (Dkt. No. 16 at 23-27.) On December 30, 2007, the administrative appeal was denied at the Director's Level, ...


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