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Aleman v. Sherman

United States District Court, E.D. California

April 26, 2017

CEASAR ALEMAN, Petitioner,
v.
STEWART SHERMAN, Respondent.

          FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 1)

         Petitioner Ceasar Aleman is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. As the instant petition was filed outside 28 U.S.C. § 2244(d)'s one-year limitation period and fails to state a cognizable federal habeas claim, the Court recommends dismissal of the petition.

         I. BACKGROUND

         Petitioner pled no contest in the Tulare County Superior Court to two counts of attempted murder and admitted various enhancements. On November 8, 2007, Petitioner was sentenced to an imprisonment term of forty years. (ECF No. 1 at 46).[1] On July 2, 2008, the California Court of Appeal affirmed the judgment, and Petitioner did not seek review in the California Supreme Court. (ECF No. 8).

         On March 10, 2016, [2] Petitioner constructively filed a state habeas petition in the Tulare County Superior Court challenging his sentence in light of the California Supreme Court's recent decision in People v. Le, 61 Cal.4th 416 (Cal. 2015). (ECF No. 1 at 38-49). The order denying the petition was filed on April 14, 2016. (Id. at 36). On May 6, 2016, Petitioner constructively filed a state habeas petition in the California Court of Appeal, Fifth Appellate District. (Id. at 25- 35, 50). The petition was denied on September 1, 2016. (Id. at 24). On November 15, 2016, Petitioner constructively filed a state habeas petition in the California Supreme Court. (Id. at 17- 22, 51). The petition was denied on January 11, 2017. (Id. at 16).

         On February 9, 2017, Petitioner constructively filed the instant federal petition for writ of habeas corpus. (ECF No. 1). On February 27, 2017, the Court ordered Petitioner to show cause why the petition should not be dismissed as untimely. (ECF No. 5). On April 10, 2017, Petitioner filed his response. (ECF No. 8).

         II. DISCUSSION

         Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a habeas petition and allows a district court to dismiss a petition before the respondent is ordered to file a response, if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.”

         A. Statute of Limitations

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). As the instant petition was filed after April 24, 1996, it is subject to the provisions of the AEDPA. The AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1).

         Section 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 the 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 was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

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