United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. He is serving a sentence of 18 years and 4 months imprisonment for three firearm related offenses and making criminal threats. Respondent has filed a motion to dismiss.
Respondent argues that petitioner has failed to exhaust state court remedies with respect to all of his claims. The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor , 404 U.S. 270, 276 (1971).
After reviewing all of the material in the record, it appears petitioner has exhausted state court remedies only with respect to the claim identified as "Ground three" in his petition for writ of habeas corpus. In that claim, petitioner challenges evidence presented at his sentencing hearing. Petitioner presented this claim to the California Supreme Court in a state petition for writ of habeas corpus filed on August 16, 2013. Resp't's Lodged Doc. No. 10. The claim was rejected on November 20, 2013. Resp't's Lodged Doc. No. 11. It does not appear petitioner has presented either "Ground one" or "Ground two" to the California Supreme Court. Accordingly, at this point, petitioner cannot obtain relief pursuant to "Ground one or "Ground two."
As for the only claim where state court remedies have been exhausted, respondent argues petitioner cannot obtain relief as to that claim because the applicable limitations period has been violated. Title 28 U.S.C. § 2244(d)(1) provides:
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 the exercise of due diligence.
On September 8, 2011, petitioner filed a petition for review in the California Supreme Court of the California Court of Appeal's denial of petitioner's appeal of his conviction and sentence. Resp't's Lodged Doc. # 13. The petition for review was denied October 12, 2011. Resp't's Lodged Doc. # 14. Petitioner's conviction became final for purposes of § 2244(d)(1)(A) on January 10, 2012 when time expired for petitioner to seek a writ of certiorari with respect to the California Supreme Court's denial of petitioner's direct appeal request for review. See Bowen v. Roe , 188 F.3d 1157, 1158-59 (9th Cir. 1999) ("We hold that the period of direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition.").
On December 11, 2011 (before time expired for petitioner to file a petition for writ of certiorari), petitioner filed a petition for writ of habeas corpus with the Superior Court of Sacramento County. Resp't's Lodged Doc. No. 1. Title 28 U.S.C. § 2244(d)(2) provides that "the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). Respondent concedes that petitioner is entitled to tolling of the applicable limitations period while his first state habeas petition was pending. The petition was denied on February 3, 2012 (Resp't's Lodged Doc. No. 1), and the limitation period began running for the first time the next day.
Petitioner filed a second petition for writ of habeas corpus in the Superior Court of Sacramento County on September 19, 2012 (Resp't's Lodged Doc. No. 4) which tolled the applicable limitations period a second time. At that point, 228 days of the limitations period had elapsed. The petition was denied October 16, 2012. Resp't's Lodgd Doc. No. 5. The limitations period commenced a second time the next day and ran out on March 2, 2013 well before this action was commenced in January of this year.
Because there appear to be no claims upon which petitioner may proceed, the court will recommend that petitioner's application for writ of habeas ...