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Martini-Sanchez v. Wolfe

December 4, 2008

CARLOS A. MARTINI-SANCHEZ, PETITIONER,
v.
JEFFREY WOLFE, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Norah McCann King United States Magistrate Judge

JUDGE MARBLEY

MAGISTRATE JUDGE KING

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on the instant petition, respondent's return of writ, petitioner's traverse, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

PROCEDURAL HISTORY

On May 25, 2005, while represented by counsel and pursuant to the terms of his negotiated plea agreement, petitioner pleaded guilty to aggravated robbery in violation of O.R.C. §2911.01, with a firearm specification. Exhibits 3 and 4 to Return of Writ. The trial court sentenced petitioner to an aggregate term of seven years incarceration. Exhibit 4 to Return of Writ. Petitioner did not file an appeal. On January 26, 2006, petitioner filed a motion for sentence reduction, Exhibit 6 to Return of Writ,which was denied on February 15, 2006. Exhibit 8 to Return of Writ. On April 3, 2007, petitioner filed a petition for post conviction relief in which he asserted claims of ineffective assistance of counsel and "illegal sentence." Exhibit 9 to Return of Writ. On April 17, 2007, the trial court denied petitioner's post conviction petition. Exhibit 11 to Return of Writ. Petitioner apparently never filed an appeal from that decision.

On September 27, 2007, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon claims of "ineffective assistance of counsel -- illegal sentence...." Petition. It is the position of the respondent that this action is barred by the one-year statute of limitations under 28 U.S.C. §2244(d) and that petitioner's claims are procedurally defaulted.

STATUTE OF LIMITATIONS

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became effective on April 24, 1996, imposes a one-year statute of limitations on the filing of habeas corpus petitions. 28 U.S.C. §2244(d) provides:

(d)(1) 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.

(2) 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 ...


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