The opinion of the court was delivered by: Hon. Ruben B. Brooks United States Magistrate Judge
ORDER DENYING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Jaime Tapia Perea has filed a Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for second degree burglary in Imperial County Superior Court case number JCF22575. (Second Am. Pet. 1, ECF No. 9.*fn1 ) Respondent has filed a Motion to Dismiss Second Amended Petition, arguing that it was filed beyond the statute of limitations and is unexhausted. (Mot. Dismiss 1-2, ECF No. 12; id. Attach. #1 Mem. P. & A. 2-9.)
The Court has considered the Second Amended Petition, Respondent's Motion to Dismiss and Memorandum of Points and Authorities in Support of the Motion to Dismiss, Petitioner's Opposition to the Motion, the lodgments submitted by Respondent, and all other supporting documents submitted by the parties. For the reasons set forth below, the Motion to Dismiss is DENIED.
II. FACTUAL AND PROCEDURAL BACKGROUND
Perea pleaded no contest to second degree burglary on October 20, 2008. (See Lodgment No. 1, People v. Perea, No. JCF22575 (Imperial Super. Ct. Oct. 20, 2008) (plea of guilty/no contest --felony).) On November 19, 2008, he was sentenced in accordance with the plea agreement to the middle term of two years in state prison, the execution of which was suspended, and placed on three years of formal probation. (Id. (superior court minutes, Nov. 19, 2008).) As conditions of probation, Perea was ordered to serve ninety days in the county jail and pay restitution in the amount of $3,000.00. (Id. at 16.) A restitution hearing was set for December 17, 2008. (Id. at 17.)
The court minutes from the December 17, 2008 hearing reflect that a memorandum from the probation department was submitted to the court; Perea asked for and received a continuance of the restitution hearing until January 21, 2009. (Id. (superior court minutes, Dec. 17, 2008).) Another continuance of the restitution hearing was granted on January 21, 2009; the continued hearing was set for March 5, 2009. (Id. (superior court minutes, Jan. 21, 2009).)
On March 5, 2009, the superior court noted it had received a "court order filed on 3/2/09, in defendant's habeas writ proceeding in Superior Court case EHC01114 . . . ." (Id. (superior court minutes, Mar. 5, 2000).) The order reads as follows:
Petitioner initiated this action by a petition filed January 15, 2009. Petitioner seeks to withdraw a plea of no contest entered in this court on October 20, 2008 in case No. JCF 22575. Petitioner alleges perjury by the victim.
Petitioner was sentenced pursuant to his plea on November 10, 2008. A restitution hearing is scheduled for March 11, 2009 at the jail division of this Court.
The Court finds that petitioner has failed to make out a prima facie showing of entitlement to relief under habeas corpus law. For that reason, the petition is DENIED.
The matter is referred to the trial court for a determination as to whether the petition may be treated as a motion pursuant to Penal Code section 1118.
(See Second Am. Pet. Attach. #1, Ex. C (order denying petition at 1-2), ECF No. 9.) The court calendared Perea's case for March 11, 2009, and set a "Review of Defendant's Plea" and "Restitution Hearing." (Lodgment No. 1, People v. Perea, No. JCF22575 (superior court minutes, Mar. 11, 2009).) Counsel was appointed for Perea, and the case was continued until April 15, 2009. (Id.)
At the April 15, 2009, hearing, Perea was appointed a new attorney who was to determine whether there was any legal basis for Perea to withdraw his plea. (Id. (superior court minutes, Apr. 15, 2009).) The matter was continued to May 13, 2009, for a "Restitution (evidentiary) Hearing and Review of Defendant's Plea." (Id.) On that date, it was continued again until May 27, 2009. (Id. (superior court minutes, May 13, 2009).) Because a witness was unavailable for the May 27, 2009 hearing, the matter was reset for June 10, 2009. (Id. (superior court minutes, May 27, 2009).) At the hearing, Perea's counsel told the court he had found no grounds upon which to move to withdraw Perea's plea. (Id. (superior court minutes, June 10, 2009).) The prosecutor and defendant reached an agreement to reduce the amount of restitution; the court accepted the stipulation and ordered restitution in the amount of $300.00. (Id.) The court modified the November 19, 2008 minutes to reflect the change. (Id.)
Petitioner did not file a direct appeal, but six months later, on December 11, 2009, he filed a petition for writ of habeas corpus in the California Court of Appeal for the Fourth District, Division One. (Lodgment No. 2, Perea v. County of Imperial, No. D056411 (Cal. Ct. App. filed Dec. 11, 2009) (petition).) The appellate court denied the petition in a written, unpublished opinion filed December 23, 2009. (Lodgment No. 3, In re Perea, No. D056411, slip op. (Cal. Ct. App. Dec. 23, 2009).) Perea then attempted to file a petition for review of the appellate court's decision with the California Supreme Court. That document was rejected by the court as untimely. (Second Am. Pet. Attach. #1, Ex. 15, ECF No. 9.))
Perea filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in this Court on July 23, 2010. (See Pet., ECF No. 1.) The Court construed the Petition as one filed pursuant to 28 U.S.C. § 2254 because Perea sought to challenge the validity of his state court conviction. (Order Construing Pet. 1-2, ECF No. 4; see White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) (holding that § 2254 is the proper jurisdictional basis for a habeas petition brought by an individual "in custody pursuant to a state court judgment"). Petitioner failed to name a proper respondent. (See id. at 2-3.) ...