Opinion
Case No. 2:03CV195
March 25, 2003
MEMORANDUN OPINION AND ORDER
Petitioner Andy C. Gomez proceeding pro se on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 complains that he was denied the effective assistance of counsel and that his court appointed counsel was improperly replaced.
The Petition reflects that Mr. Gomez pled guilty to aggravated murder and was sentenced to a term of imprisonment. His judgment of conviction was entered on September 9th, 1992. No direct appeal was taken. Mr. Gomez's conviction became final on October 9, 1992, thirty days after the date of his conviction when the time for filing a direct appeal had passed. See Utah Code Ann. § 77-18a-1(1)(a); Ut. R. App. P. 4(a). Mr. Gomez represents that he pursued state post-conviction remedies in 1999 and 2001, and that he does not now have pending any appeal or petition in any court.
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. § 2243, and after carefully reviewing Mr. Gomez's Petition, the count concludes that he has failed to file his petition within the limitations period of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA imposes a one year limitations period on an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 28 U.S.C. § 2244 (d)(1).
The one year period begins to run from the latest of the following:
(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.28 U.S.C. § 2244 (d)(1).
The AEDPA became effective on April 24, 1996. Because Mr. Gomez's conviction became final before the effective date of the AEDPA he had one year or until April 24, 1997 to file his federal habeas petition. See, e.g., Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998) (noting deadline of April 24, 1997). Mr. Gomez did not file his petition with this court until February 21, 2003. Although the limitations period of § 2244(d) may be subject to equitable tolling, Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891 (1998), Mr. Gomez has failed to show he was excused from timely filing his petition.See 28 U.S.C. § 2244 (d) (listing circumstances in which time for filing petition may be extended)
For the reasons stated, Mr. Gomez's Petition is untimely and the same is DISMISSED.