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Juan Marcos Ledesma v. Ron Barnes

May 14, 2013

JUAN MARCOS LEDESMA, PETITIONER,
v.
RON BARNES, RESPONDENT.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se and in forma pauperis, proceeds with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss the petition as untimely. Petitioner opposes the motion. Upon review of the motion, the documents in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

On May 1, 2007, petitioner pled no contest to nineteen counts of burglary and admitted numerous prior convictions. Pet. at 1; Lod. Doc. No. ("LD") 1. On June 6, 2007, petitioner was sentenced to a determinate term of sixty-seven years and four months. Petitioner did not file a direct appeal. The State, however, did file an appeal that it later dismissed. See LD

2. The California Court of Appeal, Third Appellate District, dismissed the appeal on October 11, 2007 and issued a remittitur. Id.

On February 6, 2012, petitioner filed a petition for writ of habeas corpus in the Placer County Superior Court. LD 3. On February 10, 2012, the petition was denied. LD 4.

On March 25, 2012, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. LD 5. That petition was denied on April 5, 2012. LD 6.

On May 7, 2012, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. LD 7. That petition was denied with citation to In re Robbins, 18 Cal. 4th 770, 780 (Cal. 1998). LD 8.

On August 20, 2012, petitioner initiated this action, raising the following grounds for relief: sentencing error and ineffective assistance of trial counsel. On December 7, 2012, respondent filed the instant motion to dismiss, which petitioner opposes.

DISCUSSION

Section 2244(d) of Title 28 of the United States Code contains a statute of limitations for filing a habeas petition in federal court:

(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 ...


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