Ledee v. Spearman
Filing
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ORDER by Judge James Donato granting 10 Motion to Dismiss. (jdlc1S, COURT STAFF) (Filed on 9/22/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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LAWRENCE LEDEE,
Plaintiff,
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United States District Court
Northern District of California
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Case No.16-cv-04616-JD
ORDER RE MOTION TO DISMISS
v.
Re: Dkt. No. 10
M ELLIOT SPEARMAN,
Defendant.
Defendant M. Elliot Spearman moves to dismiss Lawrence Ledee’s petition for writ of
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habeas corpus on the grounds that it is untimely and procedurally defaulted. The petition is
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dismissed as untimely under 28 U.S.C. § 2244(d).
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DISCUSSION
Section 2244(d) provides a one-year period of limitation for a habeas petition by a person
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in custody pursuant to a state court judgment. This period begins on the latest of four dates,
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described in Sections 2244(d)(1)(A) through (D). Most pertinent here is the application of Section
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2244(d)(1)(D), “the date on which the factual predicate of the claim or claims presented could
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have been discovered through the exercise of due diligence.”
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Ledee argues that the factual predicate of his claim was not discovered until February 9,
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2015, and that the claim “relies on a newly discovered legal issue.” Dkt. No. 13 at 4-5. Both of
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these arguments miss the mark. In addition to showing that the claim was not actually discovered,
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Ledee must show that the facts could not have been discovered through the exercise of due
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diligence. Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). All of the facts underlying
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Ledee’s petition could have been discovered through the exercise of due diligence by the date of
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the sentencing hearing, October 17, 2012. Dkt. No. 1; see United States v. Battles, 362 F.3d 1195,
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1998. Counsel’s formulation of a new legal theory based on known facts does not count against
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the limitations period. Ford, 683 F.3d at 1235.
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Ledee does not dispute that his conviction became final on May 20, 2014 for purposes of
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Section 2244(d)(1)(A), and that Sections 2244(d)(1)(B) and (C) do not apply. Dkt. No. 13 at 4-5.
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In that case, the petition is untimely irrespective of whether statutory tolling is appropriate under
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Section 2244(d)(2) during the pendency of Ledee’s state habeas petition. Dkt. No. 10 at 4; Dkt.
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No. 13 at 4 (“Petitioner does not dispute Respondent’s calculations”). Ledee makes no argument
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for equitable tolling, and the Court does not find it appropriate here. Consequently, the petition is
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dismissed with prejudice.
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United States District Court
Northern District of California
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IT IS SO ORDERED.
Dated: September 22, 2017
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JAMES DONATO
United States District Judge
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