United States District Court, S.D. California
ORDER ADOPTING REPORT AND RECOMMENDATION GRANTING RESPONDENT'S MOTION TO DISMISS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
GONZALO P. CURIEL, District Judge.
Petitioner Nicholas Delmark ("Petitioner"), a state prisoner proceeding pro se , filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) Respondent, Tim Perez ("Respondent"), filed a Motion to Dismiss the Petition for Writ of Habeas Corpus. (Dkt. No. 6.) Petitioner filed an opposition. (Dkt. No. 12.) Pursuant to 28 U.S.C. § 636(b)(1), Magistrate Judge Bernard G. Skomal filed a report and recommendation ("Report") recommending the Petition be dismissed with prejudice. (Dkt. No. 13.) Based on the reasoning below, the Court ADOPTS the Magistrate Judge's Report and GRANTS Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus.
On the night of May 13, 2002, 19-year-old Ashley T. drove to a parking lot in Mission Beach to meet some friends. (Dkt. No. 7-13, Lodgment 6 at 2.) She noticed a group of people waving at her, so she stopped her car to see if they needed help. (Id.) A man, later identified as Petitioner, approached Ashley and asked if she wanted to earn $60 by participating in a survey. (Id.) Ashley agreed to take the survey. (Id.) Although Ashley was reluctant to get into Petitioner's car, she did so after Petitioner convinced her he was harmless. (Id.)
Petitioner asked Ashley a series of questions about her sexual experiences. (Id.) Ashley answered some of the questions. (Id. at 3.) Petitioner took her car keys from her and suggested they drive to a different location. (Id.) He drove for about 10 minutes, parked the car on the side of the road and resumed asking Ashley questions about sex. (Id.)
When Petitioner began touching Ashley's chest and thighs, she protested. (Id.) He got on top of her, made her seat recline, unzipped his pants, pulled down her shorts and underwear and pulled her legs apart. (Id.) Ashley screamed, telling Petitioner to get off of her. (Id.) Petitioner punched Ashley in the mouth, causing it to bleed. (Id.) Ashley used Petitioner's handkerchief to wipe the blood from her mouth. (Id.) Petitioner digitally penetrated Ashley's vagina and raped her. (Id.) He then read poetry to her from a book he had in his car. (Id.) At Ashley's request, Petitioner took her back to her car. (Id.) Before driving away, Ashley recorded Petitioner's license plate number. (Id.)
Ashley, who was crying, shivering and seemed to be in shock, told her friend Danielle Stiffler what had happened. (Id.) Stiffler took Ashley to the hospital, where Ashley reported the sexual assault. (Id.) A physical examination showed Ashley had a swollen lip and other injuries consistent with her version of nonconsensual sex. (Id.) Vaginal swabs that were later tested showed the presence of Petitioner's semen. (Id.)
Police officers arrested Petitioner. (Id.) In the trunk of his car, the officers found a collection of poetry and a survey containing questions about sexual habits. (Id.) The officers also found a handkerchief in Petitioner's pocket that was later analyzed and found to contain Ashley's blood. (Id.) Petitioner had abrasions and redness on his hand and chest. (Id.)
On November 12, 2002, following a jury trial, Petitioner was convicted of five counts: (1) forcible rape; (2) rape by a foreign object; (3) sexual battery by restraint; (4) assault with intent to commit a felony; and (5) false imprisonment by violence, menace, fraud or deceit. (Dkt. No. 7-4, Lodgment 1.) On January 29, 2003 the trial court sentenced Petitioner to prison for 90 years to life. (Id.)
Petitioner appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One. (Dkt. No. 7-10, Lodgment 3; Dkt. No. 7-13, Lodgment 6.) On April 23, 2004, the appellate court found that Petitioner was entitled to an additional day of presentence credits, but affirmed the trial court's judgment in all other respects. (Dkt. No. 7-13, Lodgment 6 at 18-19.) Petitioner did not pursue discretionary review in the California Supreme Court.
On March 5, 2013, Petitioner filed a habeas petition with the San Diego County Superior Court. (Dkt. No. 7-15, Lodgment 8.) The trial court denied each of Petitioner's claims and found his petition untimely due to his substantial delay in filing and failure to show good cause. (Dkt. No. 7-16, Lodgment 9.) On June 10, 2013, Petitioner filed his habeas petition in the California Court of Appeal, and the petition was denied on July 10, 2013. (Dkt. No. 7-17, Lodgment 10; Dkt. No. 7-18 Lodgment 11.) On August 29, 2013, Petitioner filed his habeas petition in the California Supreme Court, and the petition was denied on November 13, 2013. (Dkt. No. 7-19, Lodgment 13.)
On January 10, 2014, Petitioner filed the present Petition on the same grounds previously raised in his state habeas petition. (Dkt. No. 1.) On February 19, 2014, Respondent moved to dismiss the Petition on the basis that it is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (Dkt. No. 6.) On April 25, 2014, Petitioner filed a response in opposition to the motion to dismiss. (Dkt. No. 12.) On ...