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Hernandez v. Gipson

United States District Court, Ninth Circuit

December 6, 2013

DAVID HERNANDEZ, Petitioner,
v.
CONNIE GIPSON, Warden, Respondent.

FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. 14]

MICHAEL J. SENG, Magistrate 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 is represented in this action by Galen N. Farris, Esq., 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 Tulare, upon being convicted by a jury on July 2, 2008 of shooting at an occupied vehicle, two counts of making criminal threats, six counts of assault with a firearm, and a number of sentencing enhancements. (See Lodged Doc. No. 1.) On July 31, 2008, Petitioner was sentenced to an indeterminate state prison term of twenty-seven (27) years to life. (Id.)

On December 11, 2009, the California Court of Appeal, Fifth Appellate District, remanded the matter to the trial court to determine whether a concurrent sentence should be imposed for the conviction of shooting at an occupied vehicle. The judgment was otherwise affirmed. (Lodged Doc. 2.) Review was denied by the California Supreme Court on February 18, 2010. (Lodged Docs. 3-4.)

On March 16, 2010, the trial court ordered concurrent sentences for the assault and shooting at an occupied vehicle convictions and issued an amended abstract of judgment. (Lodged Doc. 5.)

Petitioner appealed the March 16, 2010, amended judgment. The California Court of Appeal issued its opinion on June 6, 2011, and it remanded the matter for recalculation of Petitioner's custody credits. The judgment was affirmed in all other respects. (Lodged Doc. 6.)

Direct review was denied by the California Supreme Court on August 10, 2011. (Lodged Docs. 7-8.) After a hearing on September 27, 2011, a second amended abstract of judgment reflecting the recalculation of custody credits was filed. (Lodged Doc. 9.) Petitioner did not file an appeal.

Starting in October 2012, Petitioner filed three post-conviction collateral challenges with respect to his conviction in the state courts filed as follows:

1. Tulare County Superior Court Filed: October 28, 2012[1]; Denied: November 7, 2012;
2. California Court of Appeal, Fifth Appellate District Filed: December 2, 2012[2]; Denied: January 18, 2013;
3. California Supreme Court Filed: February 13, 2013[3]; Denied: June 12, 2013;

(See Lodged Docs. 10-15.)

On August 6, 2013, Petitioner filed the instant federal Petition for Writ of Habeas Corpus in this Court.[4] On October 25, 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 ...


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