The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner raises two claims regarding his 1996 conviction: 1) the trial court enhanced petitioner's sentencing using factors not found by a jury in violation of Cunningham v. California, 549 U.S. 270 (2007); and 2) trial counsel was ineffective for failing to object to the use of a 1990 probation report for sentencing.
Pending before the court is respondent's October 26, 2010 motion to dismiss on the grounds that this action is successive and because it was filed beyond the one-year statute of limitations. After carefully considering the entire record, the court recommends that respondent's motion to dismiss be granted in part.
On June 28, 1996 petitioner was found guilty and sentenced. Lodged Document (Lod. Doc.) 1. Petitioner's direct appeal ended on January 14, 1998, when the California Supreme Court denied review. Lod. Docs. 4, 5.*fn1 Petitioner filed a state habeas petition in 1999 that was denied by the California Supreme Court. Lod. Docs. 7, 8. Petitioner filed a federal habeas petition in 1998 that was denied without prejudice as unexhausted. Lod. Doc. 19; CIV 98-2330 FCD GGH P.*fn2 Petitioner filed a second federal habeas petition that was denied on the merits on October 10, 2000. Lod. Docs. 22, 23; CIV 99-2042 EJG GGH P. Petitioner appealed and the Ninth Circuit affirmed the denial on November 13, 2001. Lod. Doc. 24; Court of Appeals Docket 00-17372.
Starting in 2009 petitioner filed five new state habeas petitions in California Courts. Lod. Docs. 9-17. These petitions raised the same claims as in the instant petition and were denied by the state courts.
"A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed. . . ." 28 U.S.C. § 2244(b)(2). This is the case unless,
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would ...