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Ruiz v. Gonzalez

October 2, 2009

DANNY RUIZ, PETITIONER,
v.
FERNANDO GONZALEZ, WARDEN (A), RESPONDENT.



The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge

OPINION AND ORDER ON A PETITION FOR HABEAS CORPUS

Effective March 7, 2009, petitioner Danny Ruiz, a state inmate proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2254, and on May 18, 2009, respondent filed a motion to dismiss the petition, arguing it is untimely. On September 29, 2009, petitioner filed his opposition to the motion to dismiss. The parties have consented to this Court to conduct all proceedings pursuant to 28 U.S.C. § 636(c).

BACKGROUND

On May 5, 1998, the People filed an information in San Bernardino County Superior Court case no. FVA09446, charging petitioner*fn1 with one count of attempted, willful premeditated murder in violation of California Penal Code ("P.C.") §§ 664/187(a) (count 1), one count of attempted second degree robbery in violation of P.C. §§ 664/211 (count 2), and one count of unlawful driving or taking of a vehicle in violation of California Vehicle Code § 10851(a)(3), and as to counts 1 and 2, it was further charged that petitioner personally used a firearm within the meaning of P.C. § 12022.53(b), petitioner personally inflicted great bodily injury upon an individual not an accomplice within the meaning of P.C. § 12022.7(a), and the crimes were committed for the benefit and in association with a criminal street gang with the specific intent to promote criminal conduct by gang members within the meaning of P.C. § 186.22(b)(4). Lodgment no. 8 at 1-5. On February 9, 1999, pursuant to a stipulated written plea agreement, petitioner pleaded guilty to, and was convicted of, the lesser-included offense of attempted murder without premeditation in violation of P.C. §§ 664/187 (count 1), and petitioner admitted that during the course of the offense he personally used a firearm and inflicted great bodily injury within the meaning of P.C. § 12022.53(c). Lodgment no. 9 at 5:28-6:8. On March 11, 1999, the trial court sentenced petitioner to the stipulated total term of 29 years in state prison, and suspended imposition of the sentence on the condition petitioner serve one year in the county jail (he was given credit for having served 331 days) and be on probation for five years. Lodgment nos. 1, 9 at 14:16-18:3. The petitioner did not appeal his conviction or sentence. Petition at 2.

On October 24, 2000, petitioner admitted he violated probation, and the trial court revoked his probation and imposed the previously suspended sentence of 29 years in state prison. Lodgment no. 8 at 71, 76-77.

On or about June 16, 2008, petitioner filed a habeas corpus petition in the San Bernardino County Superior Court, claiming his plea bargain agreement was not honored, and on July 3, 2008, the Superior Court denied the petition. Lodgment no. 2. On July 16, 2008, petitioner filed a habeas corpus petition in the California Court of Appeal, which denied the petition on August 13, 2008. Lodgment nos. 3-4. On August 21, 2008, petitioner filed a habeas corpus petition in the California Supreme Court, which denied the petition on February 11, 2009. Lodgment nos. 5-6.

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "established a one-year period of limitations for federal habeas petitions filed by state prisoners," Bryant v. Arizona Attorney Gen., 499 F.3d 1056, 1059 (9th Cir. 2007), as follows:

(1) 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. . . .

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

The petitioner did not appeal his conviction, sentence, or probation revocation to the California Court of Appeal, and the conviction became final no later than 60 days after petitioner's probation was revoked on October 24, 2000.*fn2 See former California Rules of Court, Rule 31(d) (2000);*fn3 Lewis v. Mitchell, 173 F. Supp. 2d 1057, 1060 (C.D. Cal. 2001); People v. Coleman, 13 Cal. 3d 867, 871 n.1, 120 Cal. Rptr. 384, 389-90 n.1 (1975) ("An order revoking probation is appealable as an order made after judgment affecting a defendant's substantial rights."). Thus, for petitioner, the statute of limitations began to run no later than December 27, 2000,*fn4 ...


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