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London v. Lizarraga

United States District Court, N.D. California

March 17, 2015

RICHARD LONDON, Petitioner,
v.
JOE A. LIZARRAGA, Warden, Respondent.

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION AS UNTIMELY; AND DENYING CERTIFICATE OF APPEALABILITY

YVONNE GONZALEZ ROGERS, District Judge.

INTRODUCTION

Petitioner Richard London, an inmate currently incarcerated at Mule Creek State Prison, filed a pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a 1978 judgment of conviction from the San Francisco County Superior Court and asserting a claim of ineffective assistance of counsel during the plea bargaining process.

Before the Court is Respondent's motion to dismiss the instant petition as untimely under 28 U.S.C. § 2244(d)-the statute of limitations set by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed an opposition. Dkt. 11. Respondent has filed a reply. Dkt. 12. Petitioner has filed a sur-reply.[1] Dkt. 14.

Having considered all of the papers filed by the parties, the Court GRANTS Respondent's motion to dismiss the petition as untimely.

BACKGROUND

In 1978, a San Francisco County jury found Petitioner guilty of two counts of first degree murder in San Francisco County Superior Court case number 92091. Dkt. 1 at 2[2]; London v. Subia, No. CIV S-07-1489-LKK, 2010 WL 4483473, at *1 (E.D. Cal. Nov. 1, 2010).

On October 20, 1978, the trial court sentenced Petitioner to seven years to life in state prison. Id.

Petitioner claims that on unspecified dates, the California Court of Appeal, California Supreme Court, and another unnamed court upheld his criminal judgment on appeal.[3] Dkt. 1 at 3.

On March 9, 2013, [4] Petitioner filed a state habeas petition in California Supreme Court case number S209307, raising the same ineffective assistance of counsel claim raised in his federal habeas petition. Dkt. 1 at 4; Dkt. 8, Ex. 1. The petition was summarily denied on May 1, 2013. Dkt. 1 at 4; Dkt. 8, Ex. 2.

On July 18, 2013, [5] Petitioner filed the instant federal habeas petition.

DISCUSSION

The AEDPA, which became law on April 24, 1996, imposes a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (A) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (C) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (D) the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)(A)-(D).

The one-year period generally runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). AEDPA's one-year time limit, however, did not begin to run against any state prisoner before the date of the Act's enactment, April 24, 1996. Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997) (allowing § 2244(d)'s limitations period to commence before AEDPA's enactment would have an impermissible retroactive effect), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). A prisoner with a state conviction finalized before April 24, 1996-such as Petitioner's 1978 conviction-had one year from the enactment of AEDPA, i.e., April 24, 1997, to file a federal ...


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