ORDER GRANTING RESPONDENT'S MOTION TO DISMISS THE PETITION AS UNTIMELY (Docket no. 7).
The opinion of the court was delivered by: Claudia Wilken United States District Judge
Petitioner Robert Delgado, a State prisoner incarcerated at the California State Prison at Corcoran, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity of his State conviction and the denial of his application for parole by the State Board of Prison Terms (BPT). In an Order dated November 10, 2004, the Court directed Respondent to show cause why the petition should not be granted. Respondent has filed a motion to dismiss the petition on the grounds that it is untimely or, in the alternative, that it is unexhausted. Petitioner has opposed the motion, and Respondent has filed a reply to the opposition. For the reasons discussed below, the Court GRANTS the motion to dismiss.
The following factual and procedural background is based on the allegations in the petition, on Respondent's motion to dismiss and the exhibits attached thereto, and on Petitioner's opposition to the motion to dismiss.
The Monterey County District Attorney charged Petitioner with one count of first degree murder (Cal. Pen. Code § 187*fn1 ) with an enhancement for personal use of a weapon (§ 12022) and six counts of robbery (§ 211).
Pursuant to a plea bargain, Petitioner plead guilty to second degree murder and the robbery counts. On June 11, 1993, the court sentenced Petitioner to twenty-one years to life in State prison, with the possibility of parole. Petitioner did not appeal.
On August 23, 2000, Petitioner filed a federal habeas corpus petition, Delgado v. Terhune, C 00-3036 CW. Exh. 10. Prior to the Court's entry of any order in the matter, Petitioner moved to dismiss the petition voluntarily so that he could return to State court to exhaust additional claims. On November 6, 2000, the Court granted Petitioner's motion to dismiss the petition and closed the case.
On August 16, 2001, Petitioner filed his first habeas corpus petition in Monterey County Superior Court. Exh. 1. On September 6, 2001, the court denied the petition, citing In re Dixon, 41 Cal. 2d 756 (1953), which states that "[t]he general rule is that habeas corpus cannot serve as a substitute for an appeal." Exh. 2. Meanwhile, on August 23, 2001, Petitioner filed another habeas corpus petition in Monterey County Superior Court. Exh. 3. On September 12, 2001, the court denied the petition citing In re Miller, 17 Cal. 2d 734 (1941) and In re Hochenberg, 2 Cal. 3d 870 (1970), which stand for the proposition that a court will not consider a second habeas corpus petition, and that a petitioner who is denied relief must file another habeas corpus petition in the appellate court. Exh. 4.
On February 19, 2002, Petitioner filed a habeas corpus petition in the California Court of Appeal. The petition was denied on April 8, 2002. Exh. 5.
On May 30, 2002, Petitioner filed a habeas corpus petition in the California Supreme Court. Exh. 6. The court denied the petition on November 26, 2002, citing In re Clark, 5 Cal. 4th 750 (1993) and In re Robbins, 18 Cal. 4th 770, 780 (1998), which indicates that the court found the petition untimely. Exh. 7.
On February 18, 2003, Petitioner filed a petition for a writ of certiorari in the United States Supreme Court. Exh. 8. Petitioner claims that he filed an amended petition for a writ of certiorari in April, 2003. On October 6, 2003, certiorari was denied. Exh. 9.
Petitioner filed the present petition on March 29, 2004. In the Order to Show Cause, the Court identified the following claims for relief: (1) Petitioner's guilty plea was coerced, and therefore invalid, based on counsel's representations that Petitioner's parents could be incarcerated if Petitioner went to trial, that Petitioner would be released in ten years, and that Petitioner did not have a viable defense to the murder charge;
(2) trial counsel's ineffective assistance rendered the plea unknowing and involuntary because his advice to Petitioner was based on threats, erroneous sentencing information and legal errors, and counsel ...