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Massey v. Jaime

United States District Court, E.D. California

September 26, 2019

KENNETH LEWIS MASSEY, JR., Petitioner,
v.
GEORGE JAIME, Respondent.

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. He is serving a sentence of 21 imprisonment imposed upon Placer County convictions for voluntary manslaughter and three counts of inducing false testimony. Sentence was imposed October 26, 2011.

         The petition for writ of habeas corpus was filed on September 19, 2018. ECF No. 1 at 18.[1] Respondent has filed a motion to dismiss arguing that the petition is time-barred.

         Title 28 U.S.C. § 2244(d)(1) provides:

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.

         Petitioner did not appeal his convictions or sentence. Therefore, under California law, petitioner’s conviction became final for purposes of § 2244(d)(1)(A) on December 25, 2011, 60 days after sentencing. Cal. Rules of Court, rule 8.308; Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006). Absent tolling, the limitations period began running the next day and ran out one year later on December 25, 2012.

         Title 28 U.S.C. § 2244(d)(2) provides that “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 any period of limitation under this subsection.” While petitioner did file petitions for collateral review in California, they were all filed in 2017 well after the limitations period applicable to the petition filed here expired. Therefore, those petitions do not serve to toll the limitations period. Petitioner argues that the court should find the petition filed in this court timely because California courts accepted the petitions referenced above. However, there is no support for this argument or the more general proposition that the limitations period applicable here can be revived after it has expired.

         For all these reasons, the court will recommend that respondent’s motion to dismiss be granted, and petitioner’s application for a writ of habeas corpus be dismissed as time-barred.

         In accordance with the above, IT IS HEREBY RECOMMENDED that:

1. Respondent’s motion to dismiss (ECF No. 11) be ...

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