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Joseph Vasquez v. A. Gibson

January 7, 2013

JOSEPH VASQUEZ,
PETITIONER,
v.
A. GIBSON, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable J. Spencer Letts, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On May 1, 2012, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody," bearing a signature date of April 18, 2012. The Petition contains a single claim of alleged instructional error at trial. Respondent filed an Answer on September 25, 2012, asserting that the Petition is untimely. Petitioner filed a Reply on December 24, 2012.

BACKGROUND

In 2007, a jury found Petitioner guilty of two counts of first degree murder and one count of premeditated attempted murder (Petition, p. 2; Respondent's Lodgment 1). The jury found true the allegations that: (1) Petitioner committed multiple murders within the meaning of California Penal Code section 190.2(a)(3); and (2) Petitioner used a firearm within the meaning of California Penal Code sections 12022.53(b), (c) and (d) (Petition, p. 2; Respondent's Lodgment 1). Petitioner received a total sentence of life without parole plus twenty-five years to life (Petition, p. 2; Respondent's Lodgment 1).

Petitioner appealed, represented by retained counsel Lawrence R. Young (Respondent's Lodgment 4; see Petition, p. 6). The Court of Appeal's docket shows that, on July 2, 2008, after filing the opening brief, Mr. Young moved to withdraw.*fn1 On July 29, 2008, the Court of Appeal granted the motion and ordered the California Appellate Project ("CAP") to select counsel for Petitioner. On August 7, 2008, Petitioner filed letters requesting information concerning the status of the appeal and stating that he did not want Mr. Young to act as counsel. On September 23, 2008, the Court of Appeal appointed Diana Marie Teran as counsel for Petitioner. On October 9, 2008, Petitioner's copy of the appointment order was returned to the Court of Appeal. The docket entry for this date states: "Per CDCR, Appellant discharged. This Court has no updated address on file."

The Court of Appeal affirmed the judgment on June 1, 2009 (Respondent's Lodgment 5; see People v. Vasquez, 2009 WL 1508874 (Cal. App. June 1, 2009)). On June 12, 2009, Ms. Teran submitted a "premature" petition for review to the California Supreme Court, which that court filed on July 2, 2009 (see Docket in People v. Vasquez, California Supreme Court case number S173732).*fn2 The California Supreme Court denied the petition for review summarily on August 12, 2009 (Respondent's Lodgment 7).

DISCUSSION

The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners: (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 ...


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