The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER ADOPTING REPORT AND RECOMMENDATION GRANTING MOTION TO DISMISS
Peter Chang (Petitioner) filed a Petition for Writ of Habeas Corpus under 28 U.S.C. §2254 on November 16, 2006 challenging his conviction in San Diego Superior Court. A jury found Petitioner guilty on April 28, 2003 for one count of felony sexual penetration accomplished by fraud under California Penal Code §289(d) and one count of misdemeanor sexual battery under Penal Code §243.4(d)(1). (Lodgment 1, at Exhibit B, at 1-2.) The Superior Court sentenced Petitioner to five years of probation, which included 120 days in the San Diego County jail, and required Petitioner register as a sex offender. The court suspended imposition of sentence for three years and granted summary probation on count two. (Lodgment 1, at Exhibit C, at 1-3; Lodgment 13, at 2.)
Petitioner appealed to the California Court of Appeal. He argued that the evidence at trial was insufficient to sustain the conviction of sexual penetration by fraud because there was evidence of fraud only in the inducement, the trial court erred in declining to give Petitioner's proposed jury instruction defining fraud in the inducement, the court denied Petitioner's constitutional right to confrontation and to present a defense when it excluded evidence that the victim was taking anti-depressants, and the prosecution committed misconduct during the closing argument. (Lodgment 1, at Exhibit D, at 1.) The Court of Appeal affirmed the judgment on September 15, 2004. (Id., at 1-5.)
Petitioner filed an appeal in the California Supreme Court on October 22, 2004. (Lodgment 1, at Exhibit E, at 1.) The court denied review on December 1, 2004. (Id.) Petitioner did not file a writ of certiorari with the United States Supreme Court. (Petition, at 3.)
Chang filed a habeas petition with the California Court of Appeal on February 27, 2006. (Lodgment 2.) He alleged ineffective assistance of appellate counsel due to counsel's failure to raise issues on appeal. (Id., at 1-2.) The court dismissed the petition without prejudice to refiling in Superior Court, noting that "both trial and appellate courts have jurisdiction over habeas corpus petitions, but a reviewing court has discretion to deny without prejudice a habeas corpus petition that was not filed first in a proper lower court." (Lodgment 4.) In re Steele, 32 Cal.4th 682, 692 (2004).
Petitioner submitted a habeas petition to the San Diego County Superior Court on March 29, 2006 raising the same claim of ineffective assistance of appellate counsel. (Lodgment 5.) The Superior Court denied the petition on May 16, 2006 because it was untimely. (Lodgment 6, at 2-3.) The court also denied the petition on the merits. (Id., at 3-6.)
Petitioner brought a motion with the Superior Court on June 23, 2006 to modify his probation under Penal Code §1203.3. (Lodgment 7, at 3.) Petitioner claimed the trial court improperly imposed a Fourth Amendment waiver as a condition of probation. (Id.) The court granted the motion on July 21, 2006. (Id.) Chang petitioned the California Court of Appeal on July 28, 2006 claiming ineffective assistance of appellate counsel.
(Lodgment 7.) On September 28, 2006, the Court of Appeal denied the Petition on the merits. (Lodgment 9.)
Chang petitioned the California Supreme Court on October 10, 2006, raising the same claims he presented in his petition to the Court of Appeal. (Lodgment 10.) The California Supreme Court denied the petition on November 15, 2006. (Lodgment 12.)
Chang filed this Petition on November 16, 2006 asserting ineffective assistance of appellate counsel. (Petition, at 5-8.) On February 26, 2007, Respondent filed a motion to dismiss on the basis that 28 U.S.C. §2244(d) time-bars the Petition. (Document 7-2, at 3.) Chang filed an opposition to the motion on March 26, 2007. (Document 9.) The Magistrate Judge filed a Report and Recommendation on May 30, 2007 to grant the motion to dismiss. (Document 13.) Petitioner filed an objection to the Report and Recommendation on June 29, 2007. (Document 14.) This Court adopts the Report and Recommendation and grants Respondent's motion to dismiss with prejudice.
Statute of Limitations Under AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or Act) requires a state prisoner whose conviction has become final to seek federal habeas corpus relief within one year. 28 U.S.C. § 2244(d)(1)(A).
"A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--(A) the date on which the judgment became final by the conclusion ...