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Butler v. Asuncion

United States District Court, E.D. California

May 2, 2018

DERWIN BUTLER, Petitioner,
v.
DEBBIE ASUNCION, Respondent.

          ORDER GRANTING RESPONDENT'S MOTION TO DISMISS, DISMISSING AMENDED PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (ECF NO. 11)

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the United States Magistrate Judge. (ECF Nos. 6, 9, 10).

         I. BACKGROUND

         On June 30, 2014, Petitioner pleaded guilty in the Kings County Superior Court to three counts of indecent exposure. He was sentenced to an imprisonment term of twenty years.[1] (LD[2]1). Petitioner did not appeal the sentence or file any state post-conviction collateral challenges to his convictions or sentence. (ECF No. 11 at 1).[3]

         Petitioner filed an application for authorization to file a second or successive § 2254 habeas petition with the United States Court of Appeals for the Ninth Circuit. (ECF No. 1). On November 21, 2017, the Ninth Circuit ordered that the application be processed as a § 2254 habeas petition deemed filed on January 26, 2017, and transferred the matter to this Court. In the order, the Ninth Circuit “express[ed] no opinion as to the merits of the applicant's claims or whether the procedural requirements of 28 U.S.C. § 2244(d) and 2254 are satisfied.” (ECF No. 1-1 at 1).

         On November 29, 2017, this Court granted Petitioner leave to file an amended petition that was signed under penalty of perjury. (ECF No. 4). On December 22, 2017, the Court received Petitioner's first amended petition. (ECF No. 7). On March 1, 2018, Respondent filed the instant motion to dismiss the petition as untimely and unexhausted. (ECF No. 11).

         II. DISCUSSION

         A. Statute of Limitations

         On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was signed into law. AEDPA imposes various requirements on 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 AEDPA and is therefore governed by its provisions. 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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