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Raja v. Sherman

United States District Court, E.D. California

October 18, 2019

KHURAM RAJA, Petitioner,
v.
STUART SHERMAN, et al., Respondents.

          FINDINGS & RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner is a former state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2015, petitioner plead no contest to one count of lewd act with a child in violation of California Penal Code § 288(a). (ECF No. 1 at 7.) Petitioner was sentenced to 6 years imprisonment. (Id.) Petitioner raises one claim: the statute of limitations lapsed on the charge, so that his conviction and sentence were beyond the jurisdiction of the trial court.

         Pending before the court is respondent's motion to dismiss on the grounds that this action is barred by the statute of limitations. (ECF No. 13.) For the reasons stated herein, the undersigned recommends that respondent's motion be granted.

         II. Discussion

         A. Statute of Limitations

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA”). Pursuant to 28 U.S.C. § 2244(d)(1), AEDPA imposes a one-year statute of limitations for federal habeas corpus petitions. Title 28 U.S.C. § 2244(d)(1) provides, in pertinent part:

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;
(D) or the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

         Because petitioner did not appeal, his conviction became final when the time for filing an appeal expired sixty days after his November 25, 2015 criminal judgment. See ECF No. 14-1 (abstract of judgment); see Cal. Rule of Court 8.308(a) (notice of appeal must be filed within 60 days of criminal judgment); see also Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006) (California conviction become final 60 days after judgment if not appealed). Therefore, petitioner had one year from January 24, 2016, i.e. until January 25, 2017, to file a timely federal petition. The instant action, filed December 17, 2018, pursuant to the mailbox rule, is not timely, unless petitioner is entitled to statutory or equitable tolling.

         For the reasons stated herein, the undersigned also finds that petitioner's filing of a request to file a late appeal in state court did not ...


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