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Casborn v. Gower

United States District Court, E.D. California

May 26, 2017

TERROL CASBORN, Petitioner,
v.
R.L. GOWER, Respondent.

          FINDINGS AND RECOMMENDATION

          CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The instant federal habeas petition was filed on June 23, 2016.[1] Pending before the court is respondent's motion to dismiss the petition on the ground that it was filed after the statute of limitations expired.[2] ECF No. 20. Petitioner opposed the motion on April 27, 2017, ECF No. 28, and respondent filed a reply on May 1, 2017, ECF No. 29. For the reasons discussed below, the undersigned recommends granting the motion.

         I. Factual and Procedural History

         Petitioner entered a no contest plea to three counts of Second Degree Robbery in the Solano County Superior Court on March 27, 2014. ECF No. 1 at 40-43 (plea agreement); see also ECF No. 1 at 49-55 (change of plea transcript). He was sentenced to a stipulated term of eleven years in state prison on April 25, 2014. ECF No. 1 at 56-76 (sentencing transcript). He did not file a direct appeal before the California Court of Appeal.

         On or about December 16, 2015 petitioner filed a state habeas petition in the Solano County Superior Court challenging the denial of custody credits and his concurrent sentence.[3] See ECF No. 28 at 85 (trial court minute entry). It was denied by the trial court on February 10, 2016. Id.

         Petitioner filed another state habeas petition raising the same claims in the California Court of Appeal on March 7, 2016[4] which was denied four days later on March 11, 2016. ECF No. 28 at 87.

         On March 15, 2016 petitioner filed a habeas corpus petition in the California Supreme Court which he amended on May 4, 2016 by adding a speedy trial and ineffective assistance of counsel claim. ECF No. 28 at 33-56 (amended petition), 78-84 (original petition). This petition was denied without citation on June 8, 2016. ECF No.

         The present federal habeas corpus petition was filed on June 23, 2016, alleging three separate claims for relief. Petitioner first contends that his right to due process was violated based on the trial court's denial of custody credits. Secondly, he asserts that due process was violated when the trial court failed to run his sentence concurrent with a federal robbery conviction. Lastly, petitioner raises an ineffective assistance of counsel claim based on counsel's failure to raise a speedy trial violation.[5]

         II. Statute of Limitations

         Section 2244(d) (1) of Title 28 of the United States Code contains a one year statute of limitations for filing a habeas petition in federal court. The one year clock commences from several alternative triggering dates which are described as:

“(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 ... 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 ... 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 ...

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