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Lakey v. Hickman, No. 09-15940

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By FindLaw Staff on January 05, 2011 6:09 PM

Dismissal of Habeas Petition Affirmed

In Lakey v. Hickman, No. 09-15940, a murder prosecution, the court affirmed the dismissal of petitioner's habeas petition where: 1) statutory tolling is unavailable for the 267 days at issue here because petitioner's final state habeas petition was deemed untimely under California law; and 2) even giving petitioner the benefit of equitable tolling for the time period prior to the court's decision in Pace, petitioner's subsequent 141-day delay rendered his federal petition untimely by at least 128 days.

As the court wrote:  "Petitioner-Appellant Derrick Lakey, a California state prisoner, appeals from the district court's denial of his petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we dismiss the appeal because Lakey's habeas petition is time-barred under 28 U.S.C. § 2244(d) (1996)."

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