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Cordeiro v. Hernandez

April 17, 2009

DEREK L. CORDEIRO, PETITIONER,
v.
ROBERT J. HERNANDEZ, WARDEN; AND EDMUND GERALD BROWN, JR., THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, RESPONDENTS.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER: (1) ADOPTING IN PART RECOMMENDATION (2) DENYING MOTION TO DISMISS REPORT AND (3) DENYING MOTION TO STAY & (4) DENYING MOTION FOR EXTENSION OF TIME TO FILE AMENDED PETITION

On August 13, 2008, Petitioner Derek Cordeiro, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petitioner") pursuant to 28 U.S.C. § 2254, challenging his conviction in San Diego Superior Court Case No. SCD181044. (Doc. No. 1 at 36.) Petitioner alleges numerous violations of his rights under the United States Constitution. On October 17, 2008, Respondents Robert J. Hernandez and Edmund Gerald Brown, Jr. filed a motion to dismiss the Petition as untimely, or in the alternative, on the grounds that the majority of Petitioner's claims are unexhausted. (Doc. No. 8.) On November 24, 2008, Petitioner filed a motion to stay his federal petition pending exhaustion of his state court remedies. (Doc. No. 12.) In his motion to stay, Petitioner also made a general objection to Respondents' motion to dismiss. (Id.) On January 20, 2009, the magistrate judge issued a Report and Recommendation ("R&R") that the Court grant Respondents' motion to dismiss and deny as moot Petitioner's motion to stay. (Doc. No. 19.) Petitioner filed objections to the R&R on February 2, 2009. (Doc. No. 22.) On January 22, 2009, Petitioner filed a motion for purpose of both clarification and his own good faith diligence to bring his pleadings into civility (Doc. No. 21.), which the Court denied and noted that it would consider the document along with Petitioner's objections to the R&R. (Doc. No. 23.) On February 4, 2009, Petitioner filed a notice to the Court that he no longer needed a stay as every claim has now been fully exhausted and a motion for an extension of time to file amended petition. (Doc. No. 25.) On April 2, 2009, Petitioner filed an amended petition.

The Court, pursuant to its discretion under Local Rule 7.1(d)(1), determines this matter is appropriate for resolution without oral argument and submits the matter on the papers. For the reasons set forth below, the Court adopts in part the R&R, denies Respondents' motion to dismiss based on untimeliness and failure to exhaust, denies as moot Petitioner's motion to stay, and denies as moot Petitioner's motion for an extension of time to file amended petition.

Background

On January 12, 2005, Petitioner was sentenced to a total term of 85 years to life for two counts of lewd and lascivious acts upon a minor child in violation of California Penal Code 288(a), one count of indecent exposure in violation of California Penal Code 314(1), one count of child annoyance with a previous felony conviction for lewd act upon a child in violation of California Penal Code 647.6(c)(2), and two strike priors. (Lodgment No. 4.) On May 30, 2006, Petitioner filed a petition for review in the California Supreme Court in which he alleged numerous claims for ineffective assistance of trial counsel. (Lodgment No. 1.) On August 18, 2006, the California Supreme Court summarily denied the petition. (Lodgment No. 2.) On August 1, 2007, Petitioner signed a state habeas petition, which was subsequently filed in San Diego Superior Court on August 30, 2007. (Lodgment No. 3.) The Superior Court denied the petition on October 29, 2007. (Id.) On January 22, 2008, Petitioner constructively filed a state habeas petition in the California Court of Appeal, Fourth Appellate District, Division One, which was denied on May 8, 2008. (Lodgment Nos. 5, 6.) On July 3, 2008, Petitioner constructively filed a state habeas petition in the California Supreme Court, which was denied on January 21, 2009. (Lodgment No. 9; Doc. No. 25, Ex. 2.)

On August 13, 2008, Petitioner constructively filed the current federal habeas petition. (Doc. No. 1 at 36.) On September 4, 2008, the Court issued a standard notice regarding possible failure to exhaust and the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1)(A)-(D). (Doc. No. 3.) On October 1, 2008, Petitioner indicated to the Court that he wished to move to stay the Petition so that he may exhaust his claims in state court (Doc. No. 6) and the Court informed Petitioner of the requirements for demonstrating a stay is appropriate in this case. (Doc. No. 7.) On October 17, 2008, Respondents filed a motion to dismiss the Petition as untimely, or in the alternative, because it contains numerous unexhausted claims. (Doc. No. 8.) On November 24, 2008 Petitioner filed a motion to stay, which also contained a general opposition to Respondents' motion to dismiss. (Doc. No. 12.)

On December 16, 2008, the Court ordered Petitioner to submit a signed declaration, stating, to the best of his recollection, the date on which he believed his first state habeas petition (HC 19093) to prison authorities in order for it to be mailed to the San Diego Superior Court. (Doc. No. 13.) Petitioner submitted a declaration on January 15, 2009. (Doc. No. 18.) On January 20, 2009, the magistrate judge filed a report and recommendation to grant Respondents' motion to dismiss, to dismiss the Petition with prejudice based on untimeliness, and deny the motion to stay as moot. (Doc. No. 19 at 10.)

Discussion

I. Timeliness

Respondents argue that the Petition should be dismissed as untimely based upon the applicable statute of limitations. This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA") because it was filed after April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA provides that:

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 of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...


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