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Virath Kep v. F.X. Chavez

March 25, 2013

VIRATH KEP, PETITIONER,
v.
F.X. CHAVEZ, RESPONDENT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner, proceeds pro se with an amended petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 1983. Petitioner challenges his 2006 convictions in the San Joaquin County Superior Court. Respondent has moved to dismiss the petition as untimely filed beyond the applicable one-year statute of limitations. (Dkt. No. 18.) Petitioner's opposition, respondent's reply, and petitioner's sur-reply are also before the court. (Dkt. Nos. 22, 29, 31.)

BACKGROUND

On March 7, 2006, a jury convicted petitioner of six counts of lewd and lascivious acts with a child under the age of fourteen. (Lodged Document*fn1 ("L.D.") 1.) On April 17, 2006, the trial court sentenced him to a determinate state prison term of eighteen years. (Id.) On August 29, 2007, the California Court of Appeal, Third Appellate District, affirmed the judgment. (L.D. 3.) Petitioner sought review in the California Supreme Court which was denied on November 14, 2007. (L.D. 4, 5.) Before commencing the pending federal action on January 30, 2012 (see Dkt. No. 1), petitioner filed seven unsuccessful post-conviction collateral challenges which will be discussed in greater detail herein. (L.D. 7-19.)

ANALYSIS

I. AEDPA

Because the pending petition was filed after April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). The AEDPA imposes a one-year statute of limitations period for filing a federal habeas corpus petition as follows:

(d)(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 the exercise of due diligence.

(2) 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 ...


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