United States District Court, E.D. California
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)
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).
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. (LD1). Petitioner did not appeal the sentence
or file any state post-conviction collateral challenges to
his convictions or sentence. (ECF No. 11 at 1).
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).
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.
Statute of Limitations
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 ...