The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus ("MTD"). [Doc. No. 12.] Magistrate Judge Nita L. Stormes has issued a Report and Recommendation ("R&R") recommending that the Court grant Respondent's MTD. [Doc. No. 14.] Petitioner has not filed Objections to the R&R. For the reasons set forth below, this Court ADOPTS the R&R and GRANTS Respondent's Motion and DISMISSES the Petition with prejudice as untimely.
Shane Arthur Miller ("Petitioner"), a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") under 28 U.S.C. § 2254 on October 19, 2005. Petitioner challenges his confinement on the basis that (1) the trial court exceeded its jurisdiction by applying the habitual criminal statute absent sufficient evidence; (2) he received an illegal sentence due to ineffective assistance of trial counsel; and (3) he has a right, under the Fourteenth Amendment, to have his state habeas petition heard on the merits. [Doc. No. 1.] Respondent filed a Motion to Dismiss the Petition ("MTD"), arguing that the Petition should be dismissed with prejudice because it is barred by the applicable statute of limitations and Petitioner is not entitled to equitable tolling. [Doc. No. 12.] Petitioner did not file an opposition, nor did he request an extension of time in which to do so. The Court then issued an order to show cause ("OSC") as to why the MTD should not be granted. [Doc. No. 13.] Petitioner never filed a response to the OSC. After a thorough review, the Court GRANTS Respondent's Motion and DISMISSES WITH PREJUDICE Petitioner's Petition.
On July 15, 1996, a jury found Petitioner guilty of two counts of assault while using a deadly weapon, one of which included the infliction of great bodily injury. (Lodgment 2, at 2.) Additionally, Petitioner was convicted of one count of robbery while using a deadly weapon and inflicting great bodily injury. (Id.) The trial court added a consecutive five year term for a prior serious felony conviction. (Id.)
Petitioner filed a notice of appeal on December 5, 1996. (Lodgment 1, at 4.) The California Court of Appeal, Fourth District, Division One, affirmed the judgment on September 15, 1998. (Lodgment 4.) On October 26, 1998, Petitioner filed a petition to review the appellate court's unpublished decision. (Lodgment 5.) The California Supreme Court denied the petition on December 2, 1998. (Lodgment 6.)
State Petitions For Writ of Habeas Corpus
Petitioner's first state petition for Writ of Habeas Corpus was deemed filed in San Diego Superior Court on June 25, 1999.*fn1 (Lodgment 8.) On August 19, 1999, the San Diego Superior Court denied the petition in part, and issued an order for Respondent to show cause as to why Petitioner was not entitled to relief on the grounds of ineffective counsel. (Lodgment 9.) The court ultimately denied the petition on August 10, 2000. (Lodgment 14.) A second petition with the superior court was deemed filed on September 4, 2001. (Lodgment 15.) On October 4, 2001, the petition was denied. (Lodgment 16.) A third and final petition with the superior court was deemed filed on November 13, 2001. (Lodgement 17.) On November 30, 2001, this petition was also denied. (Lodgment 18.)
California Court of Appeal
Petitioner's first habeas petition with the California Court of Appeal was deemed filed on April 13, 2001. (Lodgment 19.) On July 18, 2001, the Court of Appeal denied the petition. (Lodgment 20.) A second petition was deemed filed with the court on November 13, 2001. (Lodgment 23.) On January 17, 2002, the petition was denied. (Lodgment 24.) A third and final petition with the court was deemed filed ...