The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
On October 1, 2008*fn1 , Charles Twain Clemans, Jr. ("Petitioner"), a California prisoner proceeding pro se, filed a Petition for writ of habeas corpus in the United States District Court for the Southern District of California pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner raised several claims challenging his sentence under the Fifth, Sixth, and Fourteenth Amendments to the Federal Constitution. (See Doc. No. 1 at 6.) On October 30, 2008, the Court dismissed the Petition without prejudice for failing to pay the filing fee, or for failing to show that Petitioner was unable to pay the filing fee. (Doc. No. 2.) On November 3, 2008, Petitioner paid his filing fee, and on November 21, 2008 the case was reopened by the Court. (Doc. No. 6.)
On December 19, 2008, James A. Yates ("Respondent"), Warden of Pleasant Valley State Prison, filed a Motion to Dismiss and Memorandum of Points and Authorities contending that the statute of limitations had passed. (Doc. No. 9.) On January 2, 2009, Petitioner filed his Opposition to Respondent's Motion to Dismiss. (Doc. No. 11.) On February 17, 2009, the Magistrate Judge filed a Report and Recommendation, recommending that this Court grant Respondent's Motion to Dismiss and deny Petitioner's Petition for writ of habeas corpus. (Doc. No. 13.) On March 19, 2009, Petitioner filed an Objection to the Magistrate Judge's Report and Recommendation. (Doc. No. 16.)
For the reasons below, the Court ADOPTS the Magistrate Judge's Report and Recommendation, GRANTS Respondent's Motion to Dismiss, and DENIES Petitioner's Petition for writ of habeas corpus.
On February 20, 1996, Petitioner pled guilty to four counts of attempted premeditated murder while using a firearm (Cal. Penal Code §§ 187, 664), and one count of shooting at a housecar (Cal. Penal Code § 246). (Lodgment 1 at 10; Doc. No. 1 at 2.) Petitioner also admitted that he personally used a firearm during each crime, and that he personally inflicted great bodily harm against the attempted murder victims (Cal. Penal Code §§ 12022.5, 12022.7). (Lodgment 1 at 7-8.) Petitioner received a 28-year sentence, which included both firearm and injury enhancements. (Lodgment 1 at 187.)
Petitioner appealed his conviction and filed a petition for writ of habeas corpus with the California Court of Appeal. On August 7, 1997, the Court of Appeal consolidated the appeal and habeas petition. (Lodgment 2.) On October 27, 1997, the Court of Appeal dismissed without prejudice Petitioner's petition for habeas relief, noting that the matter should first be addressed in the California Superior Court. (Lodgment 3.) Petitioner filed his petition for writ of habeas corpus in the Superior Court, which was denied on December 5, 1997. (Lodgment 4.) The Court of Appeals denied Petitioner's appeal of conviction on January 5, 1998. (Lodgment 5.)
On August 16, 2007, Petitioner filed a second petition for writ of habeas corpus with the California Superior Court arguing that his consecutive middle-term sentences violated Cunningham v. California, 549 U.S. 270 (2007). (Lodgment 6.) The Superior Court denied the petition on October 9, 2007, rejecting Petitioner's claims on the grounds that Cunningham did not retroactively apply to Petitioner, and that his consecutive-sentence challenge lacked merit. (Lodgment 7.) On November 6, 2007, Petitioner filed a petition for habeas relief in the California Court of Appeal (Lodgment 8), which was denied on February 29, 2008 on the grounds that Cunningham applied to upper-term sentencing but not to consecutive sentencing. (Lodgment 9.) On April 9, 2008, Petitioner filed his petition for habeas relief in the California Supreme Court (Lodgment 10), which was denied on September 10, 2008. (Lodgment 11.)*fn2
Petitioner then filed the present Petition for writ of habeas corpus with this Court on October 1, 2008 (Doc. No. 1), which was later amended on November 10, 2008 (Doc. No. 5). After dismissing the petition without prejudice for failing to pay the filing fee (Doc. No. 3), the Court reopened the case once the fee was paid. (Doc. No. 6.)
A. Federal Habeas Corpus Statute of Limitations
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") sets a one-year statute of limitations period applicable to a petition for writ of habeas corpus filed by a person in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d)(1). The statute of limitations begins from the latest of the following:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...