The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER: (1) ADOPTING MAGISTRATE JUDGE LEWIS'S REPORT AND RECOMMENDATION; and (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS
Before this Court is Magistrate Judge Peter C. Lewis's Report and Recommendation ("R&R") recommending that the Court grant Respondent Matthew Cate's ("Respondent" or "Cate") motion to dismiss the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 with prejudice. [Doc. No. 25]. This court has considered the Petitioner Terry Lynn Hawkins's ("Petitioner" or "Hawkins") Petition, Respondent's Answer, Petitioner's Traverse, and all supporting documentation submitted by the parties. Having considered these documents, this Court now DENIES Hawkins's Petition for Writ of Habeas Corpus in its entirety.
In 2003, Petitioner was convicted of robbery, assault with a semiautomatic firearm, burglary, and possession of a weapon by a felon. (Lodgment 6 at 1-2). Petitioner appealed his conviction to the California Court of Appeal. The court upheld the conviction in an unpublished opinion filed on April 14, 2005. (Lodgment 6). Petitioner then filed a Petition for Review in the California Supreme Court, which denied the petition on June 29, 2005. (Lodgment 8). Petitioner did not appeal to the United States Supreme Court.
Petitioner attempted to file his first post-conviction petition for writ of habeas corpus in the San Diego Superior Court on June 13, 2006. (Lodgment 10 at 1). After nearly eight months, Petitioner inquired into the status of his petition. In a letter dated February 22, 2007, the court operations clerk advised Petitioner that the petition had been sent to the wrong location and invited him to file the petition in North County Division, the proper location. (Lodgment 10, Exhibit D). On April 5, 2007, Petitioner properly filed his first state court habeas petition. The superior court denied the petition on May 18, 2007. (Lodgment 11). Petitioner appealed the denial in the court of appeal (lodgment 12), which was denied on August 6, 2007. (Lodgment 13).
On July 18, 2007, Petitioner filed another state habeas corpus petition in the court of appeal which raised additional claims. (Lodgment 12). The petition was denied August 6, 2007. (Lodgment 13). Petitioner appealed the decision to the California Supreme Court, which also denied the petition on March 26, 2008. (Lodgments 14 and 15).
Hawkins filed the current federal habeas petition before this court on April 14, 2008. [Doc. No. 1.] Respondent filed an answer to the petition and asserted a statute of limitations defense. [Doc. No. 16.] Petitioner filed a traverse on January 29, 2009. [Doc. No. 24.] Magistrate Judge Lewis filed an R&R on February 10, 2009, to which Petitioner did not file an objection. [Doc. No. 25.]
I. Statute of Limitations for Federal Habeas Corpus Petitions
A state prisoner whose conviction has become final must seek federal habeas corpus relief within one year. See Evans v. Chavis, 546 U.S. 189, 189 (2006). This statute of limitations "applies to all habeas petitions filed by persons in 'custody pursuant to the judgment of a state court'. . . even if the petition challenges an administrative decision rather than a state court judgment." Shelby v. Bartlett, 391 F.3d 1061, 1062 (9th Cir. 2004) (citing 28 U.S.C. § 2244(d)(1)). A district court is permitted, but not required, to consider the timeliness of a petition sua sponte. Day v. McDonough, 547 U.S. 198, 209 (2006). 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 retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...