The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner James Goldsmith is currently incarcerated at the California State Prison -Sacramento, in Represa, California. He was convicted by a jury of one count of receiving stolen property and one count of possessing drug paraphernalia in Sacramento County Superior Court on February 26, 2004. Because he had previously been convicted of five robberies, he was sentenced for the most recent offenses under California's "Three Strikes Law" (Cal. Penal Code. §§ 667(b)-(i), 1170.12). He is currently serving a sentence of twenty-nine-years-to-life and has filed a second amended petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2004 conviction and sentence. (See Docket 1.)
Respondent has filed an answer to the second amended petition in which he contends that petitioner failed to timely comply with California's state court filing rules, resulting in a procedural default that bars federal consideration of his claims. (See Dkt. 21 at 11-15.) In the alternative, respondent asserts that petitioner's claims are without merit. (See id. at 15-23.)
Although petitioner did not file a traverse to respondent's answer, the briefing is nevertheless complete and this matter is ripe for review. The Court, having thoroughly considered the record, recommends the Court find that the second amended petition is procedurally barred as untimely. Petitioner's procedural default is a fully sufficient basis for denial of his petition. But even if petitioner attempts to make, and if this Court permits him to make, a belated showing to avoid his procedural default, his second amended petition must fail on the merits. Under either basis, this action should be dismissed with prejudice. This disposition mirrors the rulings of the Sacramento County Superior Court.
II. FACTUAL AND PROCEDURAL HISTORY
Petitioner is challenging his 2004 conviction for possession of stolen property and possession of drug paraphernalia, which resulted in a twenty-nine-year-to-life prison sentence under California's Three Strikes Law. The California Court of Appeal summarized the facts of these offenses as follows:
At approximately noon on August 24, 2003, Nou Lee parked her 1989 light blue Toyota Camry at Arden Fair Mall in Sacramento. She returned around 2:30 p.m. to find her car had been stolen and notified mall security and the police of the theft. Around 3:30 a.m. the following morning, Sacramento Police Officer Michael Smith recognized Lee's car being driven on Grand Avenue in Sacramento. Officer Smith caught up to the car and ran a record check that confirmed it was Lee's stolen car. The driver then pulled over to the side of the road on Cypress Street without Officer Smith having to activate his lights or sirens.
Officer Smith arrested and searched defendant, who was driving Lee's car. The officer found a glass pipe commonly used to smoke rock cocaine in defendant's jacket pocket. There was no key in the ignition, nor anywhere else in the car. Defendant had a small "master lock key," but no other keys, in his possession. Officer Smith testified that Toyota Camrys are frequently stolen because they can easily be started with a shaved key, knife or scissors, and that the "master lock key" found on defendant could be used to start a Toyota Camry.
After his arrest, defendant told Officer Smith that about an hour earlier, he had rented the car for $10 from a person he knew as "Woo-Woo." "Woo-Woo" had started the car and then pulled the key out of the ignition before giving defendant the car. Defendant had used the "master lock key" found in his pocket to turn off the car on Cypress Street. Defendant told the officer that he did not know the car was stolen but had felt "something was wrong with the vehicle." Defendant admitted ownership of the pipe.
Ester Montaie was riding as a passenger in the Camry at the time of the stop. Montaie testified that in the early morning of August 25, 2003, she was walking back from the store when she noticed defendant standing in front of his mother's house on Clay Street. Defendant was standing by his Cadillac at the time, which she was aware did not run. She had seen him earlier that night, however, sitting in the Camry with a woman. She asked defendant for a ride to Cypress Street. Defendant walked her over to the Camry, started it, and drove her to Cypress Street. After they were stopped by police, defendant told her the car was stolen. She was upset because she was on parole and could be found in violation for being in a stolen vehicle.
Montaie admitted at trial that she had been drinking beer and smoked rock cocaine earlier in the evening on August 24, 2003. She had smoked .1 gram from a "baby jar" pipe. At trial, she was shown the pipe found in defendant's pocket. Montaie said it was not hers and identified it as a "straight shooter" pipe. Shanean Washington, who lived across the street from defendant and considered defendant to be "kind of like a godfather" to her, testified she saw a transaction between defendant and "Woo-Woo" wherein something exchanged hands between the men and, thereafter, "Woo-Woo" left defendant with the Camry. Washington said "Woo-Woo" would always start the car and keep the key in case the car was not returned and he needed to retrieve it.
Fay Pruitt, defendant's sister, testified she saw defendant outside her house on the night of August 24, 2003. Defendant was talking to his friend when someone drove up and asked defendant if he wanted to drive the car.
(Dkt. 22, Lodged Document 4 at 2-4.)
Petitioner was convicted by jury of receiving a stolen vehicle (a felony) and possessing drug paraphernalia (a misdemeanor). Because petitioner had previously been convicted of five robberies, for which he served four prison terms, and the court found these convictions qualified as strikes under California's "Three Strikes Law," he was sentenced to twenty-nine-years-to-life.
Petitioner timely appealed his conviction and sentence to the California Court of Appeal, Third Appellate Division, raising issues not included in this federal petition. The Court of Appeal affirmed the trial court's judgment in an unpublished decision on July 18, 2005. (See id.) Petitioner did not file a petition for review in the California Supreme Court. Accordingly, the Court of Appeal's decision became final.
On September 29, 2005, petitioner filed a petition for habeas corpus in the California Supreme Court, raising four grounds for relief. (See Dkt. 22, LD 5.) Again, none of these claims have been included in any of the prior federal petitions filed in this Court. The California Supreme Court denied this petition on July 19, 2006. (See id., LD 6.)
On January 9, 2007, petitioner filed his second state court petition for habeas corpus, this time in the Sacramento County Superior Court, presenting two claims for relief. (See id., LD 7 at 3(5) -- 4(11).) Those claims are described, infra. The superior court denied the petition on February 9, 2007, both on procedural grounds and on the merits. The court held the petition was filed fifteen months after the judgment was entered and was therefore untimely. (See id., LD 8 at 1.) The court cited In re Robbins, 18 Cal.4th 770, 811-812, 812 n.32 (1998), and In re Clark, 5 Cal.4th 750, 774-775 (1993), to support its decision. While reiterating that the petition was time-barred and that petitioner had set forth no explanation for his delay, it found that petitioner also failed to set forth a prima facie case. (See id. at 2.)
Petitioner presented the same two claims for relief to the California Supreme Court on March 14, 2007. (See id., LD 9.) On July 18, 2007, the California Supreme Court denied petitioner's state petition without explanation, with citations to In re Robbins and In re Clark. (See id., LD 10.) Petitioner's second amended petition presents in this Court the same two ...