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Alberto Torres v. Vince Cullen

January 4, 2011

ALBERTO TORRES, PETITIONER,
v.
VINCE CULLEN, WARDEN*FN1 , RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the original petition filed August 4, 2009. Petitioner challenges his 1999 conviction of second degree murder, attempted involuntary manslaughter, and firearm enhancement in the Sacramento County Superior Court, for which he received a sentence of forty years to life in state prison. Petitioner challenges his conviction and sentence on various grounds, including Cunningham /Apprendi error in imposing an upper term sentence, cumulative error at petitioner's trial, and ineffective assistance of counsel. (Petition (hereinafter, "Ptn.") at 7-22.) Pending before the court is respondent's April 23, 2010 motion to dismiss the petition on the ground that it is time-barred. After carefully reviewing the record and the applicable law, the undersigned concludes that the motion should be granted.

BACKGROUND

In 1999, following a jury trial in the Sacramento County Superior Court, petitioner was convicted of second degree murder, attempted involuntary manslaughter, and multiple enhancements. After granting the prosecutor's motion to dismiss the manslaughter count and its accompanying enhancement in the interests of justice, the court on November 19, 1999 sentenced petitioner to a state prison term of 15 years to life for second degree murder and a consecutive term of 25 years to life for firearm use, for a total sentence of forty years to life. (Resp't's Lod. Doc. 1; Resp't's Lod. Doc. 2 at 1-2.)

On October 15, 2001, the Court of Appeal, Third Appellate District, affirmed the judgment. (Resp't's Lod. Doc. 2.)

Nearly eight years later, on August 4, 2009, petitioner filed a habeas petition for review of his judgment and sentence in the California Supreme Court. (See Resp't's Lod. Doc.4.) The court denied review on February 3, 2010, citing In re Robbins, 18 Cal. 4th 770, 780 (1998), indicating that the petition was untimely under state law. (Resp't's Lod. Doc. 5.)

Petitioner also filed the instant federal action on August 4, 2009. Respondent moved to dismiss the petition on timeliness grounds on May 28, 2010. Petitioner filed an opposition to the motion on August 4, 2010, to which respondent filed a reply on August 18, 2010. Petitioner filed a motion to strike respondent's reply on November 4, 2010.

ANALYSIS

The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(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;

(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 the exercise of due diligence.

Here, the judgment became final for purposes of section 2244(d)(1)(A) when the time for filing a petition for supreme court review expired, forty days after the court of appeal's decision, on November 24, 2001. Cal. Rule of Court 8.264(b)(1) (court of appeal decision is final 30 days after filing); 8.500(e)(1) (petition for review must be served and filed within 10 days after court of appeal judgment is final). As respondent observes, the AEDPA statute began to run the following day, on November 25, 2001. ...


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