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Diaz v. Beard

United States District Court, Ninth Circuit

December 27, 2013

THOMAS ANTHONY DIAZ, Plaintiff,
v.
JEFFREY BEARD, Secretary, Defendant.

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE RE: RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

MITCHELL D. DEMBIN, Magistrate Judge.

Thomas Anthony Diaz ("Petitioner") a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Dr. Jeffrey Beard, Secretary, (hereinafter "Respondent"), filed a Motion to Dismiss Petition for Writ of Habeas Corpus and moves this Court to dismiss the Petition as untimely under 28 U.S.C. § 2244(d)(1)(D). (ECF No. 4).

Based upon the documents presently before the Court and for the reasons stated below, the Court RECOMMENDS Respondent's Motion to Dismiss be GRANTED

Summary of Proceedings

Petitioner is currently serving a prison term of sixteen years following his conviction of forcible oral copulation, attempted forcible rape, forcible rape by use of a foreign object, assault with intent to commit rape, sexual battery by restraint, and false imprisonment by violence, menace, fraud or deceit.

On September 9, 2010, Petitioner raised two claims on direct appeal to the state appellate court: 1) the prosecutor committed misconduct during closing argument; and 2) expert opinion testimony was improperly admitted. On August 29, 2011, the state appellate court denied the appeal and affirmed the judgement in its entirety. (Lodgement 2).

Petitioner subsequently appealed to the California Supreme Court and asserted the same claims presented to the California Court of Appeal. On November 16, 2011, the state supreme court denied the appeal without citation. (Lodgement 6). Petitioner's conviction became final on February 14, 2012, ninety days after the period in which to file a petition writ of certiorari pursuant to 28 U.S.C. § 2244(d)(1)(A).

On June 20, 2013, Petitioner filed the instant petition for writ of habeas corpus in this court. (ECF No. 1). He raised the same claims that were raised on direct appeal. Respondent filed a motion to dismiss on August 6, 2013. (ECF No. 4). Petitioner filed an opposition to the motion on August 22, 2013. (ECF No. 6). The Motion is deemed submitted and is ready for a decision.

Statement of Facts

As the Court's disposition of his matter does not depend on a factual analysis of Petitioner's underlying state court conviction, the Court simply notes that Petitioner was convicted of forcible oral copulation, attempted forcible rape, forcible rape by use of a foreign object, assault with intent to commit rape, sexual battery by restraint, and false imprisonment by violence, menace, fraud or deceit.

Standard of Review

The Petition was filed after the enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pub.L. No. 104-132, 110 Stat. 1214 (1996). Therefore, the Court applies the AEDPA in its review of his action. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

AEDPA, created a one-year statute of limitations for filing of a federal habeas petition by a state prisoner. The applicable statute of limitations is set forth in 28 U.S.C. § 2244(d) 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 ...

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