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Barger v. Rackley

United States District Court, E.D. California

September 29, 2014

GARY DALE BARGER[1], Petitioner,
v.
RON RACKLEY, Warden, Respondent.

FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS

MICHAEL J. SENG, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent, warden of California Health Care Facility, Stockton, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented in this action by Brian G. Smiley, of the Office of the Attorney General for the State of California.

I. BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, upon pleading on July 6, 2012 to assault with a deadly weapon with various enhancements. (See Lodged Doc. No. 1.) On February 6, 2012, Petitioner was sentenced to a determinate state prison term of eight years. (Id.)

Petitioner did not appeal his conviction. However, Petitioner filed five post-conviction collateral challenges with respect to his conviction in the form of state petitions for writ of habeas corpus, as follows:

[2] [3] [4]
[5] [6]

(See Lodged Docs. 2-11.)

On June 1, 2014, Petitioner filed the instant federal Petition for Writ of Habeas Corpus in this Court.[7] On August 22, 2014, Respondent filed a Motion to Dismiss the petition as being filed outside the one-year limitations period prescribed by 28 U.S.C. § 2244(d). (ECF No. 15, Mot. to Dismiss) Petitioner filed an opposition to the motion on September 17, 2014, and Respondent filed a reply on September 24, 2014.

II. DISCUSSION

A. Procedural Grounds for Motion ...


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