United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S
MOTION TO DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS
CORPUS (ECF NO. 12)
is proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
pled no contest to four counts of sexual battery in the
Merced County Superior Court. He was sentenced to an
imprisonment term of three years on July 25, 2014.
1). Petitioner did not appeal the sentence. Thereafter, on
August 19, 2015,  Petitioner filed a state habeas petition
in the Merced County Superior Court, which denied the
petition on October 6, 2015. (LDs 4, 5). Citing to People
v. Duvall, 9 Cal.4th 464, 474 (Cal. 1995), and In re
Clark, 5 Cal.4th 750 (Cal. 1993), the superior court
denied the petition because “[a]ll grounds alleged fail
to establish a prima facie case for habeas corpus
relief.” (LD 5). On October 31, 2015, Petitioner filed
a state habeas petition in the California Court of Appeal,
Fifth Appellate District, which denied the petition on
December 23, 2015. (LDs 6, 7). Citing to Duvall, 9
Cal.4th at 474, the California Court of Appeal denied the
petition without prejudice for failure to include
transcripts. (LD 7). On February 17, 2016, Petitioner filed a
state habeas petition in the California Supreme Court, which
summarily denied the petition on May 11, 2016. (LDs 8, 9).
January 4, 2017,  Petitioner filed the instant federal
petition for writ of habeas corpus in the Sacramento Division
of the United States District Court for the Eastern District
of California. (ECF No. 1). On February 12, 2017, the matter
was transferred to the Fresno Division. (ECF No. 3). On March
22, 2017, Respondent filed a motion to dismiss. (ECF No. 12).
Petitioner has filed an opposition, and Respondent has filed
a reply (ECF Nos. 13, 16).
Statute of Limitation
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).
The instant petition was filed after the enactment of the
AEDPA and is therefore governed by its provisions. 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
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward ...