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Lemus v. Sherman

United States District Court, C.D. California

November 21, 2014

CESAR LEMUS, Petitioner,
v.
STU SHERMAN, Warden, Respondent

Cesar Lemus, Petitioner, Pro se, Corcoran, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ROBERT N. BLOCK, UNITED STATES MAGISTRATE JUDGE.

This Report and Recommendation is submitted to the Honorable John A. Kronstadt, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

PROCEEDINGS

On or about September 21, 2014, [1] petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody herein. The Petition purported to be directed to the 22-year sentence petitioner received on February 9, 2010, following his nolo contendere plea to an attempted murder charge. As his sole ground for relief, petitioner was claiming that he should receive a reduction of sentence due to mitigating factors.

The Court's review of the Petition revealed that it suffered from several pleading deficiencies. Accordingly, on October 10, 2014, the Court issued an Order dismissing the Petition with leave to amend.

On November 10, 2014, petitioner filed a First Amended Petition (" FAP") herein, along with an accompanying response to the October 10, 2014 dismissal order. Petitioner still is claiming, as his sole ground for relief, that he should receive a reduction of sentence due to mitigating factors.

Notwithstanding the federal authorities cited in petitioner's response to the dismissal order, the Court is not convinced that petitioner has even stated a claim cognizable on federal habeas review. In any event, for the reasons discussed below, the Court now recommends that this action be summarily dismissed for untimeliness.[2]

DISCUSSION

Since this action was filed after the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (the " AEDPA") on April 24, 1996, it is subject to the AEDPA's one-year limitation period, as set forth at 28 U.S.C. § 2244(d). See Calderon v. United States District Court for the Central District of California (Beeler), 128 F.3d 1283, 1287 n.3 (9th Cir. 1997), cert. denied, 522 U.S. 1099, 118 S.Ct. 899, 139 L.Ed.2d 884 and 523 U.S. 1061, 118 S.Ct. 1389, 140 L.Ed.2d 648 (1998).[3] 28 U.S.C. § 2244(d) provides:

" (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 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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