The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER: 1) ADOPTING THE REPORT AND RECOMMENDATION (Doc. No. 10.) 2) GRANTING MOTION TO DISMISS WITH PREJUDICE (Doc. No. 7.) 3) DENYING PETITION FOR WRIT OF HABEAS CORPUS (Doc. No. 1.)
On October 23, 2009,*fn1 Petitioner Artemus Blankenship ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") seeking relief under 28 U.S.C. § 2254. (Doc. No. 1.) On July 2, 2010, Magistrate Judge Peter C. Lewis issued a Report and Recommendation ("Report") recommending that Petitioner's amended Petition be dismissed with prejudice. (Doc. No. 10.)
The Court decides the matter on the papers submitted and without oral argument. See Civil Local Rule 7.1(d.1). For the reasons outlined below, the Court ADOPTS the Report and DENIES the petition.
In 2004, Petitioner waived jury trial and was convicted by the San Diego Superior Court of residential robbery (Cal. Pen. Code §§ 211, 212.5, subd. (a)), burglary (§ 459), and petty theft with a prior theft conviction (§§ 666, 484). He admitted to two prior serious felony convictions (§§ 667, subd. (A)(1), 668) and to three prior strikes (§§ 667, subds. (b)-(I), 1170.12). The court sentenced him to prison for 60 years to life, including 25 years to life for burglary with two prior strikes, with a consecutive term of 25 years to life for burglary with two prior strikes, enhanced by two five-year terms for the prior serious felony convictions. The court stayed the sentence on the petty theft conviction with a prior (§ 654). (Lodgment 1 at 1-2.)
Petitioner raised one claim on direct appeal-that there was insufficient evidence to support his conviction for burglary. (Lodgment 2.) On March 11, 2005, the California Court of Appeal affirmed the judgment. (Lodgment 1.) Petitioner's appellate attorney did not see a basis for appealing his case to the California Supreme Court, but advised Petitioner that he had the right to file the appeal himself on or before April 19, 2005. (Doc. No. 8 at Exh.2.) Petitioner did not pursue a direct appeal in the California Supreme Court.
On February 14, 2006, Petitioner filed a Petition for Writ of Habeas Corpus in the San Diego Superior Court, arguing that he received ineffective assistance of counsel and that the trial court violated his Sixth Amendment right by conducting a bench trial. (Lodgment 4 at 1.) The petition was denied partly on the merits and partly for lack of evidentiary support on April 6, 2006. (Id.) On June 2, 2006, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. (See case number 06-CV-1178 JAH (CAB).)
On June 26, 2006,*fn2 this Court dismissed the petition without prejudice because Petitioner failed to exhaust his state remedies as to any claim. (Lodgment 5.) The court advised Petitioner that he needed to present his claims first to the state appellate and supreme courts before returning to federal court. (Id. at 4.)
Petitioner returned to the San Diego Superior Court and filed another Petition for Writ of Habeas Corpus raising three claims: ineffective assistance of counsel, court error in failing to approve a plea agreement, and an unfair bench trial conducted by a judge with knowledge of his prior guilty plea.*fn3 The San Diego Superior Court denied the petition on the merits on March 26, 2007.*fn4 (Lodgment 6.)
Petitioner raised the same three claims in a Petition for Writ of Habeas Corpus filed in the California Court of Appeal on April 28, 2007*fn5. (Lodgment 7.) The court denied the petition on August 2, 2007 because Petitioner failed to provide reasonably available documentation supporting his claims. (Lodgment 8.)
On September 11, 2007,*fn6 Petitioner raised the same three claims in a Petition for Writ of Habeas Corpus to the California Court of Appeal, only this filing included a copy of the rescinded plea agreement. (Lodgment 9.) On January 30, 2008, the court denied the petition on the merits. (Lodgment 10.)
On October 1, 2008,*fn7 Petitioner again filed a Petition for Writ of Habeas Corpus raising the same three claims in the California Court of Appeal. (Lodgment 12.) The court rejected the contentions as repetitive and successive of Petitioner's prior petitions and likewise denied it on November 6, 2008. (Lodgment 13.)
On March 6, 2009,*fn8 Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court raising the same three claims. (Lodgment 14.) The California Supreme Court summarily denied the petition on August 12, 2009. (Lodgment 15.)
The instant Petition for Writ of Habeas Corpus was filed on October 27, 2009. The petition presented the same three claims for relief: ineffective assistance of counsel, unfair bench trial in violation of the Sixth Amendment, and unfair recession of the plea agreement in violation of due process. (Doc. No. 1 at 6-15.) On March 1, 2010, Respondent Matthew Cate ("Respondent") filed a motion to dismiss, asserting that the Petition is barred by the statue of limitations found in the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Doc. No.7.) On July 2, 2010, Magistrate Judge Peter C. Lewis issued his Report recommending that Petitioner's Petition be dismissed with prejudice due to a violation of the statute of limitations. (Doc. No. 10.)
The Report also ordered that any objections were to be filed by July 23, 2010. Petitioner filed a motion for an extension of time to file objections on July 19, 2010, which the Court granted. (Doc. No. 12.) Petitioner timely ...