The opinion of the court was delivered by: Marilyn L. Huff, District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION GRANTING MOTION TO DISMISS
On August 23, 2006, petitioner Javier Martinez Torres ("Petitioner"), through his attorney, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254. (Doc. 1.) On December 7, 2006, respondent Mike Evans ("Respondent") filed a motion to dismiss on the grounds that the petition was untimely. (Doc. 9.) Petitioner did not file an opposition to Respondent's motion to dismiss. On May 30, 2007, the magistrate judge filed a report and recommendation granting the motion to dismiss. (Doc. 11.) On August 8, 2007, Petitioner filed an objection to the magistrate judge's report and recommendation. (Doc. No. 13.)
For the reasons that follow, the Court ADOPTS the magistrate judge's report and recommendation and GRANTS Respondent's motion to dismiss the Petition.
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, a factual determination made by a state court is presumed to be correct. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of fact, and inferences properly drawn from such facts, are entitled to statutory presumption of correctness). The presumption of correctness adheres equally to state appellate and trial courts' determinations of fact. See Hayes v. Kincheloe, 784 F.2d 1434, 1437 (9th Cir. 1986). The following facts are taken from the California Court of Appeal opinion in People v. Javier Torres, No. D039935, slip op., at 2-5 (Cal. Ct. App. July 8, 2003):
On July 22, 2000, Karla B., who was 15-years old and about two months pregnant, lived with her husband, Andy, in an Escondido apartment. The couple was having marital problems at the time. When they arrived home from work that evening, they saw that a window screen had been removed and that their home had been burglarized. A number of items were missing, including jewelry, a VCR, Andy's semiautomatic handgun and extra house keys. After Karla called the police, Escondido Police Officer Stephen Wilson responded and took a report.
Sometime after the officer left, Karla entered the kitchen where she encountered Torres with a T-shirt partially covering his face and holding what later proved to be Andy's gun. Andy rushed into the kitchen carrying a bat when he heard Karla scream, but he dropped the bat when he saw Torres holding the gun. Torres ordered the couple into the bedroom at gunpoint where he had Karla tie Andy's hands with an electrical extension cord.
After Andy was tied up, Torres had Karla return to the kitchen and remove her underwear; he then sexually assaulted her at gunpoint. Torres later ripped Karla's necklace off and took her watch and a ring. As he left, Torres threatened to kill Karla and Andy if they tried to follow him. Karla freed Andy and called the police while Andy jumped out the window to go to a neighbor for help. Karla was wearing a black nightgown during the assault and afterwards her neighbor gave her a shirt to cover herself. A police officer also gave Karla a towel to wipe herself while she was in the police car. Karla's physical examination revealed injuries to her genitalia consistent with a rape at gunpoint. Karla could not identify her assailant, but she provided a description to the police from which they created a composite sketch.
About a week later, Officer Steve Braucht responded to a "hit-andrun" accident and saw Torres fleeing the scene. Officer Braucht noted that Torres fitted Karla's description of her assailant and he was wearing black work boots as described by Andy. A search of Torres revealed a magazine from a semiautomatic handgun and several rounds of ammunition. Officers later recovered a gun and a second magazine near the accident scene. Andy identified the gun as his. A search of Torres's home revealed other items stolen from Karla and Andy's apartment, including Karla's watch and necklace.
Forensic analysis revealed sperm on the vaginal swabs taken from Karla after the assault, on her nightgown, on the towel given to her by the police officer and on the shirt given to Karla by her neighbor. Further testing revealed that the sperm cells left on each of the items came from Torres, with the probability of another person having the same genetic markers as Torres being about one person in 133 billion.
Torres testified in his own defense, claiming that he knew Karla and that they had engaged in consensual intercourse on July 21, 2000, but admitting that he never told this story to police. Torres claimed he went to Karla's apartment on July 22 to again have sex, but decided to burglarize the apartment when he saw Karla was not there. He denied committing the second burglary and the sexual assault. Torres's girlfriend, Karla Ruelas, testified that she and Torres had lived across the street from Karla's apartment at one time and that she suspected that Torres and Karla knew each other. After the DNA results came back, Torres admitted to Ruelas that he had sex with Karla on July 21, 2000.
A jury convicted Torres of all counts and found true all enhancements. After the conviction, the trial court granted defense counsel's request to continue the December 14, 2001 sentencing hearing to allow her to examine Karla's underwear and to bring a number of anticipated motions. It set the case for a status conference on February 1, 2002, to either resolve any defense motions or proceed with sentencing. At the February 1 hearing, defense counsel indicated that the underwear contained something to test and requested an order to allow the testing. The People objected to the request, indicating that a defense expert waited until the week of the hearing to examine the underwear and that no defense motions had yet been filed. The trial court again continued the sentencing hearing to March 8 to allow the defense to file a motion to allow testing of the underwear. The court contemplated hearing all defense motions on March 8 and indicated that, if it allowed testing of the underwear, it would give the defense additional time.
Torres filed a motion for new trial, to enforce discovery rules and again continue sentencing, requesting that the underwear be sent to a laboratory for DNA testing, but oral argument on the motions was continued from March 8 to March 28 because the judge was ill. On March 28 the trial court heard oral argument, denied the motions and sentenced Torres to 109 years 8 months to life. The sentence consisted of consecutive full-term sentences for the sex offenses (counts 3-6), consecutive sentences on the first burglary (count 1), robbery (count 7) and armed assault on Andy (count 9). The court stayed sentence under section 654 for the armed assault on Karla (count 8) and the false imprisonment (count 10) and imposed a concurrent term for the burglary conviction in count 2, indicating the burglary was for the purpose of committing the sexual assault. (Lodgment 1, Cal. Ct. App. No. D039935, at 2-5.)
Petitioner appealed his conviction to the California Court of Appeal, which affirmed the judgment on July 8, 2003. (Lodgment 1, at 1, 9.) Petitioner subsequently filed a habeas petition in California Superior Court, which denied the petition on August 15, 2003. (Lodgment 3.) Petitioner filed a petition for writ of habeas corpus with the California Court of Appeal on March 5, 2004 (Lodgment 4), which denied the petition on March 11, 2004. (Lodgment 5.) Petitioner filed a petition for writ of habeas corpus with the ...