The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING RESPONDENTS' MOTION TO DISMISS, AND DENYING PETITIONER'S MOTIONS
On March 28, 2007, Robert Quintero ("Petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. Nos. 1, 2.) On July 9, 2007, Respondents filed a motion to dismiss. (Doc. No. 7.) Petitioner filed an opposition on August 1, 2007. (Doc. No. 9.) Petitioner also filed a motion for a stay, a request for appointment of counsel, and a motion for an evidentiary hearing. (Doc. Nos. 2 and 10.)
After careful consideration, the Court ADOPTS the magistrate judge's Report and Recommendation, GRANTS Respondents' motion to dismiss and DENIES Petitioner's motions.
On November 14, 2003, a jury convicted Petitioner of multiple counts ranging from attempted murder to harming a police animal. (Doc. No. 11 at 2.) Petitioner was sentenced to ninety years to life. (Doc. No. 1 at 2.) The California Court of Appeal summarized the facts as follows:
On January 18, 2003, at approximately 2:25 a.m., San Diego County Sheriff's Deputy Dan Settle was in his patrol car, stopped on the west side of the island. With Deputy Settle was Brenton Tracy, a participant in the Sheriff's Department's Explorer program, a program for young people interested in law enforcement careers. Deputy Settle's police dog, "Urk," was also in the patrol car. Tracy was in the front passenger seat and Urk was in a metal cage in the back of the vehicle.
Deputy Settle heard three to five gunshots, which he thought were coming from an area by an apartment complex on Hacienda Drive. Deputy Settle drove to that location to investigate. As Deputy Settle approached a curve in the road, Tracy thought he saw something and Deputy Settle made a U-turn and stopped his vehicle in the road. Deputy Settle turned the car's spotlight on and got out of the car. As Deputy Settle leaned down to ask Tracy what he had seen, he saw a movement out of the corner of his eye. When Deputy Settle turned, he saw Quintero next to a blue Ford Explorer, pointing a shotgun at him. Quintero started walking toward the patrol car. Deputy Settle thought he and Tracy were going to be killed and pulled out his handgun. As he did so, Quintero fired the shotgun. Deputy Settle retreated to the back of the patrol car, firing his gun at Quintero. Quintero continued firing his shotgun at Deputy Settle and Tracy. When Quintero first opened fire, Deputy Settle used a remote control device to open the right rear door of the patrol car to let Urk out. Four shots fired by Quintero hit the windshield of the patrol car and one hit the hood. Deputy Settle thought that Quintero had shot Tracy and that he was dead.
As Deputy Settle got out of the patrol car, Tracy started to get out of the car on the passenger side. When he was halfway out, he saw Quintero crouching and holding the shotgun. Tracy fell back into the car and slumped down below the dashboard. After the gunshots ended, Tracy got out of the patrol car and moved towards the back. He tripped and fell to the ground near the back of the car. Deputy Settle, who had lost sight of Quintero at that point, heard a noise and saw a figure in dark clothing. Deputy Settle, thinking Tracy was still in the car, and believing the figure was Quintero, shot at Tracy. Tracy sustained a gunshot wound to his elbow and several shrapnel wounds to his face.
Deputy Settle then saw Quintero running along the sidewalk and chased him. Deputy Henry Lebitski arrived at the scene and joined in the chase, firing his rifle at Quintero. Quintero turned and ran west and north toward Highway 78. He climbed over a chain link fence and ran northbound across the freeway. When Quintero reached the center median of the freeway, he turned and fired at Deputy Settle one more time. The shot was close enough that Deputy Settle could hear it "cutting through the air." Quintero continued running to the other side of the freeway, climbed another chain link fence and ran into a field, where Deputy Settle lost sight of him. Deputy Settle returned to his patrol car to assist Tracy. Upon arriving, he found Urk lying on the ground, dead from a gunshot wound. Investigators found a bag containing 79 shotgun shells in the Explorer. They found 14 live shotgun shells in the area between Hacienda Drive and Highway 78. Using tracking dogs, investigators also found a pack hidden under a bush on a street just north of Highway 78, containing 57 live shotgun shells.
People v. Quintero, No. D043269, 2004 WL 3049317, at *1-3 (Cal. Ct. App. January 5, 2005). The California Court of Appeal affirmed Petitioner's conviction and sentence. (Lodgment 1.) On February 14, 2005, Petitioner petitioned for review by the California Supreme Court. (Lodgment 2.) The California Supreme Court denied his petition on March 23, 2005, "without prejudice to any relief to which defendant might be entitled after this court determines in People v. Black, S126182, and People v. Towne, S125677, the effect of Blakely v. Washington . . . ." (Id.) Petitioner did not seek a writ of certiorari from the United States Supreme Court.
On March 15, 2007, nearly two years after the California Supreme Court denied his petition for review, Petitioner filed the present petition in this Court. The petition asserts the same claims that Petitioner presented to the California Supreme Court, namely that imposing the upper term sentence violated Petitioner's Sixth Amendment rights. (Doc. Nos. 1, 2.) On April 12, 2007, Petitioner also filed a state habeas petition in California Superior Court, County of San Diego. (Doc. No. 10 at 9.)
Respondents argue that the Court should dismiss the petition because Petitioner did not file it within the one year statute of limitations. (Doc. No. 7.) Petitioner contends that the California Supreme Court's denial of his petition for review did not constitute a final judgment because the Court denied the petition without prejudice to any relief he was entitled to after that Court resolved two pending cases. (Doc. No. 2.) Petitioner also asserts that he is entitled to a later statute of ...