United States District Court, E.D. California
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
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, Kings County Sheriff, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented in this action by Brian G. Smiley, of the Office of the Attorney General for the State of California. Both parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 6-7.)
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kings. On Paril 17, 2009, Petitioner was found guilty by a jury of one count of making threats with the intent to cause fear and two counts of making criminal threats. The jury found true allegations that Petitioner suffered three prior convictions for which he served prison terms and failed to remain free of custody for five years after the prison terms concluded. Petitioner was sentenced to a determinate state prison term of five years and eight months. (Lodged Doc. 1.)
On March 2, 2010, the California Court of Appeal, Fifth Appellate District, modified the sentence to stay imposition of the sentence on count three pursuant to Penal Code section 654. As modified, the judgment was affirmed. (Lodged Doc. 1.) Petitioner did not seek review in the California Supreme Court. On June 24, 2010, the Kings County Superior Court amended the abstract of judgment as directed by the Court of Appeal. (Lodged Doc. 2.) Petitioner did not appeal the resentence.
Petitioner proceeded to file four collateral appeals to his conviction in state court. (See Lodged Docs. 3-10.) The petitions were filed as follows:
1. Kings County Superior Court Filed: April 13, 2009; Denied: June 12, 2009;
2. California Court of Appeal, Fifth Appellate District Filed: April 23, 2009; Denied: June 3, 2009;
3. California Supreme Court Filed: June 1, 2010; Denied: February 16, 2011;
4. Kings County Superior Court Filed: December 21, 2011; Denied: February 14, 2012.
(Lodged Docs. 3-10.)
Petitioner filed the instant federal habeas petition on June 1, 2014. (Pet.) On August 8, 2014, Respondent filed a Motion to Dismiss the petition on the grounds that it was filed outside the one-year limitations period prescribed by 28 U.S.C. § 2244(d) and that Petitioner had failed to exhaust his state remedies. (Mot. to Dismiss, ECF No. 8.) Petitioner filed an opposition to the motion to dismiss on August 20, 2014. (ECF No. 10.) Respondent filed a reply on August 27, 2014. (ECF No. 11.)
A. Procedural Grounds for Motion ...