The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Oscar Hurtado Cervantes, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Cervantes is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Calipatria State Prison. Respondent has answered. Cervantes has not replied.
In July 2006 Cervantes was convicted in the Yolo County Superior Court of two counts of first-degree murder (Cal. Penal Code § 197) and two counts of attempted murder (Cal. Penal Code §§ 187; 664(a)), with enhancements for criminal street gang findings (Cal. Penal Code §§ 186.22(b)(4); 190.2(a)(22)), and aggravated personal use of a firearm (Cal. Penal Code § 12022.53(a), (d)). The trial court sentenced Cervantes to multiple terms of life without the possibility of parole. Cervantes timely appealed his conviction and sentence to the California Court of Appeal, Third Appellate District, which reduced Cervantes' term on one count, and affirmed Cervantes' conviction and sentence in all other respects in an unpublished decision,*fn1 and the California Supreme Court denied review on July 15, 2009.
On July 30, 2010, Cervantes filed a petition for habeas relief in the Yolo County Superior Court, which was denied September 21, 2010, as untimely. The California Court of Appeal, Third Appellate District, summarily denied Cervantes' petition in that court without opinion or citation to authority. Cervantes petition for habeas relief in the California Supreme Court was also summarily denied without opinion or citation to authority on May 11, 2011. Cervantes filed his Petition for relief in this Court on June 30, 2011.
In determining entitlement to federal habeas relief, this Court
reviews the last reasoned decision by the state court.*fn2
State appellate court decisions that summarily affirm a lower
court's opinion without explanation are presumed to have adopted the
reasoning of the lower court.*fn3
This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn4
Under California's unique habeas procedure, a prisoner who is denied
habeas relief in the superior court files a new original petition for
relief in the court of appeal. "The new petition, however, must be
confined to claims raised in the initial petition."*fn5
If denied relief by the court of appeal, the defendant has
the option of either filing a new original petition for habeas relief
or a petition for review of the court of appeal's denial in the
California Supreme Court.*fn6 This is considered the
functional equivalent of the appeal process.*fn7
Respondent contends that Cervantes' Petition is untimely. This Court agrees. The California Supreme Court denied review on July 15, 2009. Cervantes' conviction became final on direct review 90 days later when his time to file a petition for certiorari in the Supreme Court expired,*fn8 October 13, 2009. 28 U.S.C. § 2244 provides:
(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.
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward any
period of limitation under this subsection. As relevant to this case,
the two provisions of § 2244 involved are (d)(1)(A) (date the judgment
of conviction became final) and (d)(2) (exclusion of the time ...