The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND ADOPTING RECOMMENDATION REPORT AND
On October 6, 2011, Petitioner George T. Munoz ("Petitioner"), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On November 17, 2011, Respondent moved to dismiss the petition for writ of habeas corpus, arguing that it is barred by the statute of limitations set forth in AEDPA, 28 U.S.C. § 2244(d). (Doc. No. 11.) On February 8, 2012, the magistrate judge issued a report and recommendation to grant Respondent's motion to dismiss the petition for writ of habeas corpus. (Doc. No. 16.) On April 18, 2012, Petitioner filed an objection to the report an recommendation. (Doc. No. 23.) For the following reasons, the Court adopts the report and recommendation of the magistrate judge and grants Respondent's motion to dismiss.
On March 29, 2006, a San Diego jury found Petitioner guilty on the following counts:
(1) four counts of oral copulation by acting in concert in violation of California Penal Code section 288a(d); (2) three counts of assault with a weapon in violation of California Penal Code section 245(a)(3); (3) one count of residential burglary in violation of California Penal Code section 459; (4) two counts of robbery in violation of California Penal Code section 211; (5) one count of taking a vehicle in violation of California Vehicle Code section 10851(a); (6) one count of possessing a firearm as a felon in violation of California Penal Code section 12021(a); and (7) three counts of receiving stolen property in violation of California Penal Code section 496(a). (Doc. No. 11 at 1-2.) In connection with the four counts of copulation, the jury found that there were multiple victims and that Petitioner used a firearm, bound the victims, and burglarized the victims' home. (Id. at 2.) The jury further found that Petitioner was armed with or used a firearm in connection with the other counts. (Id.) The trial court sentenced Petitioner. (Id.)
On November 29, 2007, Petitioner appealed to the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment Nos. 2-5.) On June 10, 2008, the California Court of Appeal, in a well-reasoned order, affirmed Petitioner's convictions but modified the sentence to strike the prior prison term enhancement. (Lodgment No. 7.) On July 11, 2008, Petitioner appealed his convictions to the California Supreme Court. (Lodgment No. 8.) On September 10, 2008, the California Supreme Court declined to review the Court of Appeal's decision. (Lodgment No. 9.) Petitioner did not seek review in the U.S. Supreme Court, and the conviction became final on December 9, 2008.
On October 14, 2009, Petitioner filed a petition for writ of habeas corpus in the San Diego County Superior Court; the court denied the petition on December 21, 2009. (Lodgment Nos. 10-11.) On March 25, 2010, Petitioner again filed a writ of habeas corpus petition in the San Diego County Superior Court; the court, in a well-reasoned order, denied the petition on June 4, 2010, but the court appointed counsel concerning post-conviction DNA testing. (Lodgment Nos. 12-13.) After review, Petitioner's appointed counsel withdrew the DNA testing request for reasons set forth in the court filing. (Lodgment No. 14.) On July 16, 2010, Petitioner sought a writ of habeas corpus from the California Court of Appeal, Fourth Appellate District, Division One; the court, in a well-reasoned opinion, denied the petition on August 12, 2010. (Lodgment Nos. 15-16.) On January 16, 2011, Petitioner sought habeas relief in the California Supreme Court; the court denied the petition without comment on July 13, 2011. (Lodgment Nos. 17-18.) On August 10, 2011, Petitioner filed a petition for writ of habeas corpus in the San Diego County Superior Court; the state court has not yet ruled on this fifth petition.
On September 24, 2011-although the state court petition remained pending-Petitioner filed a petition for writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner seeks federal habeas relief on evidence preservation and ineffective assistance of counsel claims. (Doc. No. 1.)
A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party objects to any portion of the report, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made." Id. A federal court may review a petition for writ of habeas corpus by a person in custody pursuant to a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); accord Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000).
II. AEDPA Statute of Limitations
The one-year statute of limitations in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, bars Petitioner's petition for writ of habeas corpus because even after the statute's tolling provisions apply, the ...