Back to Exhibit 7

ARGUMENT

B.  NONE OF THE DEFENDANT’S THREE HABEAS CORPUS PETITIONS ARE BARRED BY THE FEDERAL ONE YEAR STATUE OF LIMITATIONS UNDER 28 U.S.C. SS 2244 (D). CONTRARY TO THE CLAIMS OF OPPOSING COUNSEL, ALL THREE HABEAS PETITIONS IN QUESTION HAVE BEEN TIMELY FILED IN BOTH STATE AND FEDERAL COURT.

1. The entire motion to dismiss filed by opposing counsel in regards to these Habeas petitions, is frivolous. The plain and salient fact is that the State of California has no specific or consistently applied time limit for the filing of Habeas Corpus petitions, and delays in filing for as long as five or ten years have been upheld and approved in California State Courts. In Re. Clark (1993) 5 Cal.4^th 750, 786 [21 Cal. rotr.2d 509; 855 P.2d 729]. California conditions its Habeas filing deadlines on a system that leaves it up to individual judges to determine whether or not a Habeas Corpus petition has been filed within a reasonable time or not. And because of this said practice, the limitations period for filing Habeas petitions is inconsistently applied. The Attorney General’s office knows this. So instead of addressing the merits of defendant’s petitions, Assistant A.G., Ms. Beale, instead has decided to waste everybody’s time by concocting frivolous arguments by attempting to use California’s 60 day time limit for filing a DIRECT APPEAL resulting from a TRIAL conviction, and trying to apply that time limit to the defendant’s attempts to seek COLLATERAL review of an illegal conviction resulting from GUILTY PLEAS in State Court in a Habeas Corpus petition. And what makes her arguments so clearly frivolous is the fact that California courts have NEVER applied the 60 day limit to file a direct appeal, to the filing of Habeas Corpus petitions, evidenced by the fact that Ms. Beale has cited no such precedent or authority. So instead she forces the defendant to waste his and the court’s time by arguing against her prima facie frivolous “time bar” arguments.
    
2. However, there is an enormous amount of precedent within the 9^th circuit Court of Appeals, and abroad, that SUPPORT the defendant’s right to Federal review of all three of his Habeas Corpus petitions. Please see Calderon V. District court for Eastern Dist. Of California, 96 F.3d 1126, 1129 (9^th cir.1996) (“Not all state procedural bans are ‘adequate’ to foreclose federal review. For the procedural default doctrine to apply, ‘a state rule must be clear, consistently applied, and well established at the time of the petitioner’s purported default’…An adequate and independent state procedural bar to the entertainment of constitutional claims must have been ‘firmly established and regularly followed’ by the time as of which it is to be applied…The reason for these requirements, we have explained, is that ‘it is grossly unfair- - and serves none of the purposes of respect for procedural rules- - to forfeit an individual’s constitutional claim because he failed to follow a rule that ‘was not firmly established at the time in question.’ “); see also Calderon, supra, at 130: (“since California’s timeliness requirements were not ‘clear, consistently applied, and well established… they could ’not serve as an adequate and independent state ground’ sufficient to support a procedural default”.); see Calderon, supra, at 129-30: (the 9^th circuit Court of Appeals pointing out the fact that “ In Re.Clarck, 5 cal.4^th 750, 21 Cal. Rptr.2d 509, 855 P.2d 729 (1998), the California Supreme Court acknowledged that ‘no clear guidelines [regarding departure from Habeas Corpus rules] have emerged in our past cases’ “.), (internal citations omitted).
    
3. More recent appeals court cases have reiterated those findings as well. See Lacrosse V. Kernan, 244 F.3d 702, 704 (9^th cir.2001) (“to be ‘adequate’, the state procedural rule must be ‘strictly or regularly followed’ and consistently applied’.”). See also Loveland V. Hatcher, 231 F.3d 640, 642 (9^th cir.2000); Jackson V. Calderon, 211 F.3d 148, 1153 (9^th cir.2000); Johnson V. Mississippi, 108 s.ct.1981, 1987, 486 U.S. 578 (1988).
    
4. Thus even the 9^th circuit Court of Appeals in Calderon, supra at 129-30, has acknowledged the fact that the State of California has “no clear guidelines” regarding limitations periods for state Habeas Corpus review. And even if they had, those procedural limits would have to be “strictly or regularly followed” to prevent Federal review of the defendant’s three Habeas Corpus petitions. And current California state law fails on both points. And as it is, the question of how old the defendant’s three cases in issue are (one conviction arising in 1994 and two others arising in 1998), and how long it may or may not have taken the defendant to file the three current Habeas matters with the State Court, is completely irrelevant, since the State Court did not claim or hold that any of the three Habeas petitions in question were untimely filed, none of the State Court’s invoked any time bar, and none of the State Courts on any of the three court levels explicitly or implicitly denied any of the defendant’s three Habeas Corpus petitions on any limitations period grounds.