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Driver v. Brown

United States District Court, C.D. California

March 25, 2014

BILLY DRIVER, JR., Petitioner,
v.
JERRY BROWN, Governor, Respondent.

ORDER TO SHOW CAUSE

ALICIA G. ROSENBERG, Magistrate Judge.

On March 11, 2014, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, it appears the one-year statute of limitations has expired.

The court, therefore, orders Petitioner to show cause, on or before April 25, 2014, why the court should not recommend dismissal of the petition with prejudice based on expiration of the one-year statute of limitations.

I.

PROCEDURAL BACKGROUND

In June 1986, Petitioner pled guilty to various crimes in Los Angeles County Superior Court. (Petition at 2). Petitioner was sentenced to "50 years with stipulation of half time." ( Id. ) Petitioner did not appeal. ( Id. ) However, Petitioner alleges that the government breached the plea agreement in December 2010. ( Id. at 2 & Memorandum at 2.)

On December 6, 2013, Petitioner filed a habeas petition in the California Supreme Court, which was denied on February 26, 2014. ( Id., Exs. A, B.)

On March 11, 2014, Petitioner filed the instant petition in this court in which he raises three grounds.

II.

STATUTE OF LIMITATIONS

The petition was filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, the court applies the AEDPA in reviewing the petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

The AEDPA contains a one-year statute of limitations for a petition for writ of habeas corpus filed in federal court by a person in custody pursuant to a judgment of a state court. 28 U.S.C. § 2244(d)(1). The one-year period starts running on the latest of either the date when a conviction becomes final under 28 U.S.C. § 2244(d)(1)(A) or on a date set in § 2244(d)(1)(B)-(D). The only subdivision relevant here is (d)(1)(D).

A. Date of Discovery - 28 U.S.C. § 2244(d)(1)(D)

The statute of limitations may start to run on the date a petitioner discovered (or could have discovered) the factual predicate for a claim that his counsel's performance was deficient, or on the date a petitioner discovered (or could have discovered) the factual predicate for prejudice, whichever is later. See Hasan v. Galaza, 254 F.3d 1150, 1155 (9th Cir. 2001). Therefore, the statute of limitations begins to run on "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)(D). The statute starts to run when the ...


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