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Park v. James

United States District Court, E.D. California

May 1, 2017

SANG HYUK PARK, Petitioner,
v.
STEPHANIE L. JAMES, [1]Respondent.

          FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 12)

         Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         I. BACKGROUND

         Petitioner 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. (LD[2] 1). Petitioner did not appeal the sentence. Thereafter, on August 19, 2015, [3] 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).

         On January 4, 2017, [4] 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).

         II. DISCUSSION

         A. Statute of Limitation

         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). 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 ...

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