The opinion of the court was delivered by: JAN ADLER, Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Introduction and Procedural Background
On June 22, 2000, a jury found Bowie guilty of robbery in
violation of California Penal Code § 211. On June 26, 2000, the
court found true three prison priors, within the meaning of Cal.
P.C. §§ 667.5(b) and 668; three serious felony priors, within the
meaning of Cal. P.C. §§ 667(a), 668 and 1192.7(c); and four
strike priors, within the meaning of Cal. P.C. §§ 667(b)-(I),
1170.12 and 668. On June 26, 2000, the court sentenced Bowie to
41 years to life in state prison, which consisted of 25 years to
life, pursuant to the Three Strikes Law, for the robbery
conviction; three five-year consecutive terms for the serious felonies; and one year for one of the prison priors. The court
stayed sentencing on the remaining two prison priors.
Bowie appealed to the California Court of Appeal, Fourth
Appellate District, Division One, raising the following issues:
(1) The trial court improperly instructed the jury with CALJIC
No. 17.41.1; and (2) the trial court abused its discretion when
it refused to strike any of Bowie's prior convictions. (Lodgment
No. 3.) The Court of Appeal affirmed the conviction on May 29,
2002. (Lodgment No. 4.)
On July 8, 2002, Bowie filed a Petition for Review in the
California Supreme Court, raising the same claims he raised in
the Court of Appeal. (Lodgment No. 5.) The California Supreme
Court denied the Petition for Review on August 14, 2002.
(Lodgment No. 6.)
Bowie filed a Petition for Writ of Habeas Corpus in the
California Supreme Court on November 18, 2003, raising the
following claims: (1) The trial court violated Bowie's right
under the California Constitution, Article I, section 28(d) and
(f) when it imposed a five-year consecutive sentence for one of
his prior serious felony convictions committed in 1979; (2) the
trial court erred in imposing a 25-year-to-life sentence for
robbery when such a conviction would ordinarily warrant no more
than an aggravated term of six years; and (3) the trial court
erred in refusing to instruct the jury on the defense of duress
pursuant to CALJIC No. 4.40. (Lodgment No. 7.) The California
Supreme Court denied the Petition on September 15, 2004, citing
In re Swain, 34 Cal. 2d 300, 304 (1949); People v. Duvall,
9 Cal. 4th 464, 474 (1995); In re Lindley, 29 Cal. 2d 709 (1947);
In re Dixon, 41 Cal. 2d 756 (1953); and In re Waltreus,
62 Cal. 2d 218 (1965). (Lodgment No. 8.)
Bowie filed the instant Petition on February 25, 2005, raising
the following claims: (1) The trial court erred in refusing to
instruct the jury on the defense of duress pursuant to CALJIC No.
4.40; (2) the trial court improperly instructed the jury with
CALJIC No. 17.41.1; and (3) the trial court abused its discretion
when it refused to strike any of Bowie's prior convictions. On
May 6, 2005, Respondent filed an Answer to the Petition for Writ
of Habeas Corpus. Bowie filed a Traverse on September 22, 2005.
II. Respondent's Request for Dismissal
Although Respondent filed an Answer addressing the merits of
Bowie's habeas petition, its also argues that the petition should
be dismissed because it is barred by the statute of limitations
and because it is procedurally barred. (Answer at 7, 8.)
Under § 2244(d)(1), a state court prisoner usually has one year
from the date his conviction becomes final within which to file a
§ 2254 petition in federal court. 28 U.S.C. § 2244(d)(1).
Judgment becomes final by the conclusion of direct review.
28 U.S.C. § 2244(d)(1)(A) (West Supp. 2003).
The California Supreme Court denied Bowie's Petition for Review
on August 14, 2002. (Lodgment No. 5.) Bowie had 90 days in which
to file a petition for writ of certiorari to the United States
Supreme Court, so his judgment became final on November 12, 2002.
See S. Ct. R. 13; Bowen v. Rowe, 188 F.3d 1157, 1159 (9th Cir.
1999). Bowie had until November 12, 2003 to file a habeas
petition either in this Court, or in the state court, which would have tolled the statute of limitations. See
28 U.S.C. § 2244(d)(2). However, Bowie did not file his habeas
petition with the California Supreme Court until November 18,
2003, which was more than a year after his judgment became final.
(Lodgment No. 7.) In addition, even though the California Supreme
Court issued its decision denying his petition on September 15,
2004, Bowie did not file his current habeas petition until
February 25, 2005. (Lodgment No. 8.)
Bowie's habeas petition is untimely. Accordingly, this Court
recommends that his petition be dismissed.*fn1
After a thorough review of the record in this matter, the
undersigned Magistrate Judge recommends that Bowie's Petition for
Writ of ...