Opinion
No. Civ. S 04-2379 FCD PAN P.
December 27, 2005
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner without counsel, seeks a writ of habeas corpus. She challenges a 1996 murder conviction in San Joaquin County for which she is serving a sentence of 25 years to life.
July 7, 2005, respondent moved to the dismiss the petition as filed outside the time allowed by the statute of limitation.
A petition for habeas corpus challenging a state conviction or sentence must be filed within one year from the date on which the challenged judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). This limitation period is tolled for the period during which a "properly filed application" for post-conviction or other collateral review is pending in state court. 28 U.S.C. § 2244(d)(2).
Petitioner's conviction was final June 30, 1998, 90 days after the California Supreme Court denied her petition for review. The limitation period then commenced and it expired June 29, 1999, long before petitioner filed her first state habeas petition November 5, 1999.
Petitioner opposes dismissal. She argues she is uneducated and does not read or write English. She complains of the deficient assistance provided by attorney Richard Dangler, whom she hired in March 2002 to seek post-conviction relief. Events related to Dangler occurred long after the limitation period expired and have no relevance to the present motion. Petitioner has not established any basis for tolling the limitation period between June and November of 1999 and respondent is entitled to dismissal.
Accordingly, the court hereby recommends respondent's July 7, 2005, motion to dismiss be granted and this action be dismissed as untimely.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1), these findings and recommendations are submitted to the United States District Judge assigned to this case. Written objections may be filed within 10 days of service of these findings and recommendations. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge may accept, reject, or modify these findings and recommendations in whole or in part.