Correa v. Gipson

Filing 28

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/29/2014 RECOMMENDING that respondent's 25 unopposed motion to dismiss be granted. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HENRY LALO CORREA,

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Petitioner,

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No. 2:12-CV-2683-MCE-CMK-P

vs.

FINDINGS AND RECOMMENDATIONS

CONNIE GIPSON,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s unopposed

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motion to dismiss (Doc. 25). Respondent argues that the instant petition is untimely.

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Petitioner is serving a determinate 13-year prison term after pleading no contest to

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possession of methamphetamine with intent to sell. The California Court of Appeal affirmed the

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conviction and sentence on April 28, 2011. Petitioner did not seek review in the California

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Supreme Court. Petitioner did, however, file one post-conviction petition in the California Court

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of Appeal on January 22, 2012. The petition was denied on February 2, 2012, and petitioner has

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not sought further review in the state courts. The instant federal petition was filed on October

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14, 2012.1

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Federal habeas corpus petitions must be filed within one year from the later of: (1)

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the date the state court judgment became final; (2) the date on which an impediment to filing

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created by state action is removed; (3) the date on which a constitutional right is newly-

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recognized and made retroactive on collateral review; or (4) the date on which the factual

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predicate of the claim could have been discovered through the exercise of due diligence. See 28

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U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court

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judgment becomes final by the conclusion of direct review or expiration of the time to seek direct

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review. See 28 U.S.C. § 2244(d)(1). Where, as here, no petition for review by the California

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Supreme Court is filed, the conviction becomes final 40 days following the Court of Appeal’s

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decision, and the limitations period begins running the following day. See Smith v. Duncan, 297

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F.3d 809 (9th Cir. 2002). The limitations period is tolled, however, for the time a properly filed

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application for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2).

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In this case, because petitioner did not seek direct review by the California

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Supreme Court, the limitations period began to run the day after expiration of te 40-day time

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period in which to do so, or on June 8, 2011. The limitations period, however, was tolled for the

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period petitioner’s single state court post-conviction petition was pending – from January 22,

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2012, through February 2, 2012, or 12 days. Given this period of tolling, the one-year limitations

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period ended on June 20, 2013. Because the instant federal petition was filed in October 2013,

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the court agrees with respondent that is untimely and must be dismissed.

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The court has given petitioner the advantage of the prisoner “Mailbox Rule” in
calculating all dates.
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Based on the foregoing, the undersigned recommends that respondent’s
unopposed motion to dismiss (Doc. 25) be granted.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 29, 2014
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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