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Delgadillo v. Gipson

United States District Court, Ninth Circuit

August 15, 2013

HERCULANO DELGADILLO, Petitioner,
v.
C. GIPSON, Warden, Respondent.

FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS

MICHAEL J. SENG, District Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent C. Gipson, Warden of California State Prison, Corcoran, is represented in this action by Andrew R. Woodrow, of the Office of the Attorney General for the State of California.

I. BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of San Diego, upon being convicted by a jury of aggravated assault, corporal injury to a spouse, and terrorist threats. (Pet. at 1.) After his conviction, Petitioner was sentenced to a determinate term of fifteen years. (Id.)

In 2010, Petitioner challenged whether the reduction of his credit earning capacity under California Penal Code section 2933.6 violated the Ex Post Facto Clause. On November 18, 2010, a director's level administrate appeal decision denied his claim and served to exhaust his administrative remedies. (See Mot. To Dismiss, Ex. 1 at 28-29.

Petitioner proceeded to three petitions for writ of habeas corpus in the California state courts as follows:

1. Kings County Superior Court Filed: November 1, 2011[1]; Denied: January 9, 2012;
2. California Court of Appeal, Fifth Appellate District Filed: February 1, 2012[2]; Denied: February 8, 2012;
3. California Supreme Court Filed: August 3, 2012[3]; Denied: October 17, 2012;

(Mot. to Dismiss, Exs. 1-3.)

On November 29, 2012[4], Petitioner filed the instant federal Petition for Writ of Habeas Corpus in this Court. On June 24, 2013, Respondent filed a Motion to Dismiss the petition as being filed outside the one-year limitations period prescribed by 28 U.S.C. § 2244(d). (Mot. to Dismiss, ECF No. 12.) Petitioner filed an opposition to the motion on August 8, 2013, and Respondent filed a reply on August 9, 2013. (ECF Nos. 15-16.)

II. DISCUSSION

A. Procedural Grounds for Motion to Dismiss

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district ...


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