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September 16, 2005.

G.J. GIURBINO, Warden, Respondent.

The opinion of the court was delivered by: WILLIAM McCURINE Jr., Magistrate Judge

Eduardo Guerra Petett ("Petett" or "Petitioner"), a state prisoner proceeding pro se and in forma pauperis, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition" or "Pet."). Respondent has filed a Motion to Dismiss, with an attached Memorandum of Points and Authorities, arguing that the Petition is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). (Doc. No. 7.) Petitioner has not filed an opposition or otherwise responded to the Motion to Dismiss.

This Report and Recommendation is submitted to United States District Judge Dana M. Sabraw pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule H.C.2 of the United States District Court for the Southern District of California. For the reasons stated herein, the Court recommends that the Motion to Dismiss be GRANTED and the Petition be DISMISSED. I.


  On October 6, 1987, Petitioner was convicted by a San Diego County Superior Court jury of second degree murder in violation of California Penal Code § 187. The jury found that Petitioner had used a deadly weapon within the meaning of California Penal Code § 12022(b). (Mot. to Dismiss, Ex. A, People v. Petett, No. D007360, slip op. at 1 (Cal.Ct.App. April 17, 1990).) He was sentenced to a prison term of sixteen years. (Id.)

  Petitioner appealed his conviction, claiming that the trial court erred in (1) admitting evidence of his previous possession and use of knives (2) admitting evidence of his past use of cocaine, and (3) that the loss of the reporter's notes from the first day of trial prevented a meaningful review of his conviction. (Id. at 6, 15) The appellate court affirmed Petitioner's conviction in an unpublished opinion filed April 17, 1990. (Id.) Petitioner did not seek review in the California Supreme Court.

  Petett filed a petition for writ of habeas corpus with the California Supreme Court on March 4, 2004,*fn1 arguing that the appellate court violated his due process and equal protection rights in affirming his conviction, and explaining that his petition "should not be time barred as [the] claim is based on a new clarifying statute proving innocence." (Mot. to Dismiss, Ex. B at 3; Pet., Ex. A at 3.) That petition was denied on January 19, 2005. (Mot. to Dismiss, Ex. C, In re Petett on Habeas Corpus, No. S123354, slip op. at 1 (Cal. Jan. 19, 2005).)



  Petett filed the instant federal Petition on March 9, 2005.*fn2 (Pet. at 7.) Petitioner bases the Petition on the same grounds raised in his state habeas corpus petition, and further questions whether the California Supreme Court's denial of his petition was proper. (Id. at 5-6.) Petitioner claims that his rights were violated because a witness who testified at his 1987 trial, Ricardo Tartaglia, was coached to lie by the prosecution. (Pet. at 5.) Petitioner claims that the appellate court erred in affirming his conviction in light of the prosecution's misconduct. (Id. at 6.) In addition, Petitioner asserts that the California Supreme Court's denial of his state habeas petition violates his right to a fair trial and is contrary to federal law. (Id. at 5.)

  On May 25, 2005, Respondent filed a Motion to Dismiss on the grounds the Petition is barred by the applicable statute of limitations set forth in 28 U.S.C. § 2244(d) as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (Mot. to Dismiss at 1, 6.) Petitioner has not filed a response.



  The following statement of facts is taken from the state appellate court opinion affirming Petitioner's conviction. This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Sumner v. Mata, 449 U.S. 539, 545-47 (1981) (stating that deference is owed to factual findings of both state trial and appellate courts).

In April 1987 Carmen Martinez and Jesus Quijas, who were husband and wife, separated because of marital problems, including physical abuse inflicted by Quijas upon Martinez. Petett and his wife Amanda assisted Martinez in moving out, put her up for one night before she moved to Los Angeles and helped her move her furniture into storage. The furniture had been broken and slashed with a knife, apparently by Quijas.
On the morning of May 4, approximately one week after Martinez had moved out, Quijas and another man arrived at Petett's apartment. Quijas knocked loudly on the door and tried to convince Amanda Petett to let him in. Amanda, who thought Quijas was drunk, refused to let Quijas in and told him Martinez was not there. As Quijas left, he shouted an obscenity at Petett. An angry Petett, fearing Quijas would damage his car, put a hammer in a plastic bag to simulate a gun and followed Quijas down the stairs from the apartment. At the bottom of the stairway, Petett told Quijas to stop bothering him and his wife and offered to let Quijas search the apartment for Martinez. Petett testified Quijias approached him with his hand in his pocket; Petett said he pushed Quijas to prevent him from coming nearer. At that point, the apartment manager, Jolene Pickens, observed Quijas and Petett shouting and pushing each other, and told Quijas and his companion to leave.
At approximately 6 p.m. that day, Petett was returning to the apartment complex with his wife and a friend, Aurora Salcedo Jimenez, when they observed Quijas and his companion outside the complex. Petett exclaimed in Spanish that Quijas had returned. Quijas began pounding on the door of an apartment, yelling "Adrian," a nickname Petett goes by. The next-door neighbor, Diana Tartaglia, testified Quijas appeared angry and drunk. Her seven-year-old son, Ricardo, offered to direct Quijas to Petett's apartment. As Ricardo and Quijas descended the stairs, the boy's father, Renato Tartaglia, emerged from his apartment, concerned about Quijas's excited behavior. After Petett parked his car, he removed a knife from under his car seat and entered the complex. Petett approached Quijas as he and Ricardo Tartaglia reached the bottom of the stairway.
Ricardo and his parents testified Petett removed a knife from his pocket, and, after arguing with Quijas, stabbed him once in the chest. All three of the Tartaglias testified that Quijas did not advance upon Petett; Renato Tartaglia said Quijas "kind of froze." Ricardo also testified he saw Petett put the knife back in his pocket, remove another knife and throw it to the ground near ...

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