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John Rood v. William Knipp

April 12, 2013

JOHN ROOD, PETITIONER,
v.
WILLIAM KNIPP, WARDEN,*FN1 RESPONDENT.



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

ORDER

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, and in forma pauperis. Petitioner filed an application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).

Before the court is respondent's motion to dismiss the pending habeas petition as barred by the statute of limitations. Despite being granted an extension of time, petitioner did not file an opposition to the motion. For the reasons set forth below, the motion to dismiss is 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. On July 12, 2005, petitioner pled no contest to assault in Butte County Superior Court Case No. SCR48016. (Respondent's Lodged Document ("LD") 1.) On November 29, 2007, petitioner was sentenced to six months concurrent jail time. (LD 1.) Petitioner did not appeal this conviction.

2. On July 12, 2005, petitioner pled no contest to arson in Butte County Superior Court Case No. CM022078. (LD 1.) On November 29, 2007, petitioner was sentenced to four years in state prison, credited with 1,523 days served, and released on parole. (LD 1.) Petitioner did not appeal this conviction.

3. On June 12, 2008, petitioner pled no contest to escape by force or violence in Butte County Superior court Case No. CM24359, and a sentencing enhancement was found true. (LD 2.) On June 24, 2008, petitioner was sentenced to a nine year determinate state prison term. (LD 2.) Petitioner did not appeal this conviction.

4. On August 7, 2007,*fn2 petitioner filed a petition for writ of habeas corpus in the Butte County Superior Court, challenging the two 2007 convictions.*fn3 (LD 3.) The petition was denied on September 19, 2007, because the challenged proceedings were stayed due to an inquiry into petitioner's mental competence pursuant to California Penal Code § 1368. (LD 4.) On June 20, 2008, the petition was reinstated, and denied. (LD 5.)

5. On January 1, 2009, petitioner filed a second petition for writ of habeas corpus in the Butte County Superior Court challenging the two 2007 convictions, and the 2008 conviction.*fn4 (LD 6.) On February 6, 2009, the petition was denied, with citations to In re Swain, 34 Cal. 2d 300, 303-04 (1949), and People v. Duvall, 9 Cal. 4th 464, 474-75 (1995).*fn5 (LD 7.)

6. On February 8, 2009, petitioner filed a third petition for writ of habeas corpus in the Butte County Superior Court challenging all three convictions. (LD 8.) On March 13, 2009, the petition was denied with citations to Swain, 34 Cal. 2d at 303-04, and Duvall, 9 Cal. 4th at 474. (LD 9.)

7. On June 30, 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. (LD 10.) While not entirely clear, it appears petitioner challenged all three convictions. (LD 10.) The petition was denied on July 30, 2009, without comment. (LD 11.)

8. On November 12, 2009, petitioner filed a fourth petition in the Butte County Superior Court, challenging all three convictions.*fn6 (LD 12.) On November 20, 2009, the petition was denied with citations to Swain, 34 ...


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