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Johnson v. Kaban-Miller

United States District Court, Ninth Circuit

December 3, 2013

ANGELA MARIE JOHNSON, Petitioner,
v.
TAMARA KABAN-MILLER, Warden, Respondent.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY

JOHN E. McDERMOTT, Magistrate Judge.

INTRODUCTION

On August 2, 2013, [1] Angela Marie Johnson ("Petitioner"), a California state prisoner, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition"). Respondent filed a Motion to Dismiss the Petition on September 11, 2013, on the ground that Ground Two in the Petition is unexhausted, and that the Petition is time-barred by the one-year statute of limitation set forth in 28 U.S.C. § 2244(d). On October 17, 2013, Petitioner filed an Opposition. Respondent filed a Reply on October 30, 2013. The Motion to Dismiss is now ready for decision.

For the reasons set forth below, the Petition is dismissed with prejudice as untimely.

STATE COURT PROCEEDINGS

Following a jury trial in Los Angeles County Superior Court case number KA088534, Petitioner was convicted of two counts of second degree robbery (Cal. Penal Code § 211) and one count of petty theft with a prior (Cal. Penal Code § 666). It was also found true that, as to one count of robbery, Petitioner personally used a firearm (Cal. Penal Code § 12022.53(b)), and that Petitioner served three prior prison terms (Cal. Penal Code § 667.5(b)). Petitioner was sentenced to a total of 17 years and eight months in state prison. (Respondent's Lodged Document ("LD") 8.)

On August 25, 2011, the California Court of Appeal issued a reasoned opinion rejecting Petitioner's claims of error on direct review in case number B226242. (LD 7.) Petitioner filed a petition for review in the California Supreme Court ("CSC") in case number S196617. (LD 5-6.) That petition was denied on November 30, 2011. (LD 5.)

On December 27, 2011, the Los Angeles County Superior Court received a habeas corpus petition from Petitioner.[2] The petition was denied on January 5, 2012. (LD 4 at Attach.)

On February 7, 2012, Petitioner constructively filed a habeas corpus petition in the California Court of Appeal in case number B239076. (LD 3-4.) The petition was denied on February 24, 2012. (LD 3.)

On May 13, 2012, Petitioner constructively filed a habeas corpus petition in the CSC in case number S202545. (LD 1-2.) The petition was denied on August 8, 2012. (LD 1.)

The instant Petition was filed on August 2, 2013. (Petition at 8.)

DISCUSSION

I. The Applicable Statute of Limitations.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "establishes a 1-year period of limitation for a state prisoner to file a federal application for a writ of habeas corpus." Wall v. Kholi , 131 S.Ct. 1278, 1283 (2011); Lawrence v. Florida , 549 U.S. 327, 329 (2007); 28 U.S.C. § 2244(d)(1). After the one-year limitations period expires, the prisoner's "ability to challenge the ...


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