United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF
PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 1)
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.
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
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).
March 10, 2016,  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).
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).
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.”
Statute of Limitations
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).
(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