The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge
MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PROCEEDINGS
On September 26, 2011, Kenneth Ray Martin ("Petitioner"), a prisoner in state custody, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 ("Petition"). On December 13, 2011, Respondent filed a Motion to Dismiss the Petition as untimely. On January 24, 2012, Petitioner filed an Opposition, in which he made an argument for equitable tolling. On February 14, 2012, the Court issued an Order advising the parties that the Motion to Dismiss had been taken under submission and ordering Respondent to file an Answer. On May 14, 2012, Respondent filed an Answer. On July 30, 2012, Petitioner filed a Reply. The parties have consented to proceed before the Magistrate Judge.
The matter is ready for decision. For the reasons set forth below, the Court concludes that the Petition should be denied and the case dismissed with prejudice.*fn1
Following a jury trial in Los Angeles County Superior Court, Petitioner was convicted of first degree burglary (Cal. Penal Code § 459),*fn2 assault with intent to commit rape during the commission of a burglary (§ 220(b)), attempted murder (§§ 664/187), making a criminal threat (§ 422), and assault with intent to commit rape (§ 220(a)). The jury also found true allegations that Petitioner had suffered a prior strike conviction (§§ 667(b)-(i), 1170.12(a)) and inflicted great bodily injury in committing the assault and attempted murder (§§ 12022.7, 12022.8). The trial court sentenced Petitioner to state prison for a term of life plus twenty-six years. (Respondent's Lodged Document ("LD") A, Clerk's Transcript ("CT") at 183-87.)
Petitioner appealed his conviction. (LD 2-4.) On March 9, 2010, the California Court of Appeal modified the judgment of conviction to strike a lesser included offense and to reflect additional credit for time spent in custody. The judgment was affirmed, as modified. (LD 5.)
Petitioner filed a petition for review in the California Supreme Court (LD 6), which was denied on June 23, 2010. (LD 7.)
Petitioner filed the instant Petition on September 26, 2011.
SUMMARY OF EVIDENCE AT TRIAL
On July 27, 2007, Janeth Z., a student a California State University Northridge, was moving from her apartment. Janeth was waiting for her boyfriend Jaime Carranza and her cousin Jesse Martinez to arrive and help her move some of her belongings. (LD B, Reporter's Transcript Vol. 3 ("3RT") at 624-25.)
While she waited, Janeth began taking some miscellaneous items out to her car. Her car was parked in the alley, just outside the security gate to the complex. The lock on the gate frequently was broken, and it was that day. (3RT at 631.)
On one of her trips to the car, Janeth saw Petitioner sitting in the alley near the trash bins. (3RT at 625.) He was wearing headphones and appeared to be listening to music. (3RT at 625-26.) He was outside the gate that led into the apartment complex. (3RT at 631.) When Janeth went back out, this time carrying a television set, Petitioner opened the gate for her. She went back to the apartment to gather up some more items. (3RT at 632.)
When Janeth came out with another load, Petitioner was no longer next to the trash bins. Janeth eventually spotted Petitioner sitting inside the building on an interior stairway leading to the second floor of the building, about thirty steps from her apartment. (3RT at 633.) When Janeth returned from the car, Petitioner asked her if she needed help. She said, "No, thank you," and continued to her apartment. (3RT at 626.)
On her next trip to the car, Janeth noticed that Petitioner was no longer sitting on the stairs. (3RT at 626, 634.) Petitioner had secreted himself in a small alcove in the hallway where he could not be seen from Janeth's apartment door. (CT at 85.)
Carranza called Janeth from his car to let her know he and Martinez were just leaving the freeway and would be there soon. Janeth told him she still had some items to move and would move the small things while she waited for him. She asked him to call when he and Martinez arrived at her building. (3RT at 697.) Janeth put some more things into her car. Carranza called to tell her they had arrived and parked up on the hill. She told him to move the car around to the alley side, closer to the building entrance, so they would not have to carry things so far. (3RT at 697.) Janeth told Carranza he would be able to come through the gate because it was open. (3RT at 697.)
Janeth returned to the apartment and began to close the door behind her. As she did so, Petitioner shoved the door open from the other side, came into the apartment, and locked the door behind him. He grabbed her by both arms, just below the shoulder (3RT at 635-36), and shoved her. Janeth said, "Please don't do this. My boyfriend is on his way. Don't do this. Please." (3RT at 627, 656.) Petitioner said, "Shut up, bitch." (3RT at 627, 657.) Janeth said, "Please stop," and screamed "Help!" Petitioner said repeatedly, "shut up, bitch, or I am going to kill you. I will kill you. Shut up." (3RT at 627; see also 3RT at 658.)
Janeth struggled and fought back. (3RT at 636.) Petitioner said, "Let's go to the room," and started to push her toward the bedroom door. Janeth said, "no, please no." (3RT at 627.) She started screaming. Petitioner said, "Shut up, bitch." (3RT at 657.) She fell backward onto her elbow, and Petitioner fell on top of her. (3RT at 658.) He was still saying "let's go to the room." To avoid going into the bedroom, Janeth told Petitioner her leg was hurt and she could not walk. Petitioner told her to take off her pants. (3RT at 660-61.)
Janeth was flat on her back, and Petitioner was above her, straddling her, with his legs on either side of her body, below her waist. He tried to unbutton her pants. She was screaming. Petitioner hit her and told her to shut up. He held her down with one hand on her chest just below her collarbone, and tried to unbutton her jeans with the other hand. His entire weight was on her. Petitioner could not unfasten the button because Janeth's jeans were too tight. (3RT at 661-63.) He hit her in the face with his fist. (3RT at 664.) He hit her on the nose. She felt warm blood all over her face and eyes and could not see. (3RT at 669.)
Janeth flipped over onto her stomach. Petitioner put his arm around her neck from the back, and began strangling her in a chokehold. The pressure on her throat increased. She could not breath and was afraid she was going to die, so she finally unbuttoned her own jeans. (3RT at 665-66.) One side of her face was against the floor, and she was looking out the large living room window. Petitioner pulled her pants down and began hitting her on the side of the face. (3RT at 668.)
Carranza and Martinez parked in the alley and walked to Janeth's apartment. Approximately two or three minutes had passed since they called her. Carranza knocked on the apartment door, but there was no answer. He knocked again and heard sounds as if "there was a struggle" coming from the interior. It sounded like "some kind of ruckus." He could hear Janeth's voice; it sounded like "she was choking on something." (3RT at 697, 699.)
Janeth heard a knock at the door, turned her face toward it, and screamed, "Open the door, Jaime!" (3RT at 669-70.)
Carranza and Martinez took turns kicking the door. On the third try, the door frame shattered and the door swung open. (3RT at 698.) Carranza saw Janeth "laid out on her stomach with a gentleman on top of her and he had his arm around her neck." Her face was red and scratched and "real bloody." She looked "very scared." (3RT at 700-01.) Petitioner pushed himself off Janeth and ran for the door. Carranza grabbed Petitioner, they fell back into ...