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Jorge Niebla v. G.J. Janda

February 20, 2013

JORGE NIEBLA,
PETITIONER,
v.
G.J. JANDA, WARDEN (A),
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 Christina A. Snyder, 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 16, 2012, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody," bearing a signature and service date of May 10, 2012. Respondent filed an Answer on November 6, 2012, asserting that the Petition is untimely. Petitioner filed a Reply on January 28, 2013.

BACKGROUND

On March 17, 2004, in the Los Angeles County Superior Court, a jury found Petitioner guilty of one count of kidnapping, two counts of infliction of corporal injury on a former cohabitant, one count of residential burglary, two counts of dissuading a witness by force or threat, one count of aggravated assault, one count of making a criminal threat, one count of sexual penetration with a foreign object, one count of forcible oral copulation, three counts of forcible rape, two counts of battery inflicting injury upon a peace officer, and one count of resisting an officer by force or violence (Respondent's Lodgment 1; see People v. Niebla, 2008 WL 5395113, at *1 (Cal. App. Dec. 23, 2008)). The jury also found Petitioner guilty of the misdemeanor offenses of assault and committing a lewd act in the presence of a minor (see People v. Niebla, 2008 WL 5395113, at *1). The jury found true the allegations that the rapes, oral copulation, and sexual penetration with a foreign object were committed during a burglary (see People v. Niebla, 2008 WL 5395113, at *1). The court sentenced Petitioner to a term of thirty-nine years and eight months plus five consecutive terms of fifteen years to life (Respondent's Lodgment 1; People v. Niebla, 2008 WL 5395113, at *1).

On August 20, 2007, the California Court of Appeal affirmed the conviction but remanded the case to the Superior Court for resentencing (Respondent's Lodgment 5). On October 24, 2007, the California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 7).

On January 2, 2008, the Superior Court resentenced Petitioner (Respondent's Lodgment 8).*fn1 On December 23, 2008, the Court of Appeal again remanded for resentencing but otherwise affirmed the judgment (Petition, Ex. C; Respondent's Lodgment 12; see People v. Niebla, 2008 WL 5395113 (Cal. App. Dec. 23, 2008)).

On June 24, 2009, the Superior Court resentenced Petitioner to a term of 39 years and 8 months plus 15 years to life (Petitioner, Ex. B; Respondent's Lodgments 13, 14, 15). The Court of Appeal affirmed the judgment on February 26, 2010 (Petition, Ex. E; Respondent's Lodgment 17; see People v. Niebla, 2010 WL 670539, at *1 (Cal. App. Feb. 26, 2010)). The California Supreme Court denied Petitioner's petition for review summarily on May 12, 2010 (Petition, Ex. F; Respondent's Lodgment 19).

Petitioner filed a pro se habeas corpus petition in the Superior Court, bearing a service date of July 18, 2010 (Respondent's Lodgment 20).*fn2 On August 5, 2010, the Superior Court denied the petition, directing the clerk to give notice (Respondent's Lodgment 21).

On or after December 19, 2010, Petitioner sent a letter to the Superior Court, stating that he had not received any verification that the court had filed his petition, and requesting proof of filing (Respondent's Lodgment 22). A copy of the envelope attached to this letter bears a prison postmark of December 21, 2010 (Respondent's Lodgment 22).

On March 9, 2011, Petitioner filed a habeas corpus petition in the Court of Appeal, bearing a signature and service date of March 4, 2011 (Respondent's Lodgment 23). In that Petition, Petitioner challenged his conviction and sentence, and also alleged, inter alia, that he had not been "served" with the Superior Court's August 5, 2010 order until January 6, 2011 (Respondent's Lodgment 23, "Addendum to Instant Petition for Writ of Habeas Corpus," p. iii). Petitioner attached to the Court of Appeal petition a copy of a Superior Court nunc pro tunc minute order, dated August 5, 2010, denying the Superior Court petition (Respondent's Lodgment 23, Ex. G thereto). The minute order bore a print date of January 3, 2011 (id.). Also attached to the Court of Appeal petition was a copy of an envelope addressed to Petitioner, bearing the Superior Court's return address and a postmark of January 4, 2011 (id.). Petitioner's prison mail log shows Petitioner received mail from the Superior Court on January 7, 2011 (Respondent's Lodgment 30, p. "4 of 5").

On April 21, 2011, the Court of Appeal issued an order: (1) requiring the Director of the California Department of Corrections and Rehabilitation to show cause in the Superior Court why the abstract of judgment should not be corrected; and (2) otherwise denying the petition (Respondent's Lodgment 24).

On June 21, 2011, the Superior Court issued a minute order appointing counsel for Petitioner "pursuant to defendant's request" and correcting the abstract of judgment to reflect a sentence of thirty-three years and eight months plus an additional term of 15 years to life (Respondent's Lodgment 28, Ex. J).*fn3 On June 29, 2011, a Superior Court deputy clerk issued an amended abstract of judgment reflecting Petitioner's correct sentence (Respondent's Lodgment 25).

On July 27, 2011, Petitioner filed a petition for writ of mandate in the Court of Appeal, bearing a signature and service date of July 24, 2011 (Respondent's Lodgment 26). Petitioner alleged that the Superior Court had failed to conduct proceedings regarding the Court of Appeal's April 21, 2011 order to show cause and had failed to respond to Petitioner's motions (Respondent's Lodgment 26, pp. 2-3). On August 28, 2011, the Court of Appeal denied the petition on the ground that the relief sought had been granted by the Superior Court's June 21, 2011 minute order, and directed the clerk to serve a copy of that minute order on Petitioner (Respondent's Lodgment 27).

On November 23, 2011, Petitioner filed a habeas corpus petition in the California Supreme Court, bearing a signature date of November 17, 2011 (Respondent's Lodgment 28). The California Supreme Court denied the petition summarily on April 18, 2012 (Respondent's Lodgment 29).

PETITIONER'S ...


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