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BOWIE v. SULLIVAN

United States District Court, S.D. California


October 12, 2005.

MICHAEL EUGENE BOWIE, Petitioner,
v.
J. SULLIVAN, Warden, et al., Respondents.

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

  III. Recommendation

  After a thorough review of the record in this matter, the undersigned Magistrate Judge recommends that Bowie's Petition for Writ of Habeas Corpus be dismissed as untimely.

  This Report and Recommendation is submitted to the Honorable William Q. Hayes, United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).

  IT IS ORDERED that no later than November 4, 2005, any party may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

  IT IS FURTHER ORDERED that any reply to the objections shall be served and filed no later than November 18, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

  IT IS SO ORDERED.

20051012

© 1992-2005 VersusLaw Inc.



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