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Vega v. Davis

United States District Court, N.D. California

September 24, 2014

ERNEST VEGA, Petitioner
v.
RON DAVIS, Warden, Respondent.

ORDER GRANTING RESPONDENT'S RENEWED MOTION TO DISMISS PETITION AS UNTIMELY

YVONNE GONZALEZ ROGERS, District Judge.

Petitioner Ernest Vega, a state prisoner, filed the instant pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court is Respondent's renewed motion to dismiss the instant petition as untimely under the one year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). Having read and considered the papers submitted and being fully informed, the Court GRANTS Respondent's renewed motion and dismisses the petition.

I. BACKGROUND

On April 17, 2001, a jury convicted Petitioner guilty of assault with intent to commit rape, attempted rape, false imprisonment, and attempted sexual penetration. Petitioner admitted that he had four prior strike convictions (including two prior serious felony convictions), and that he had served a prior prison term. The trial court sentenced Petitioner under California's Three Strikes law, imposing a term of twenty-five years to life for assault as well as identical concurrent terms for the other three offenses. Dkt. 10, Ex. A at 1-2. The trial court also imposed a consecutive eleven-year sentence comprised of two five-year serious-felony enhancements and a one-year prison-term enhancement. Id.

On March 12, 2003, the California Court of Appeal affirmed Petitioner's conviction. Dkt. 10, Ex. B.

On April 22, 2003, Petitioner sought review in the California Supreme Court. Dkt. 10, Ex. C. On May 21, 2003, the state supreme court denied review. Dkt. 10, Ex. D.

On September 22, 2011, Petitioner filed a habeas petition in the Santa Clara County Superior Court. Dkt. 10, Ex. E. On November 17, 2011, the state superior court denied the petition. Dkt. 10, Ex. F.

On January 3, 2012, Petitioner filed a habeas petition in the California Court of Appeal. Dkt. 10, Ex. G. On January 17, 2012, the state appellate court denied the petition. Dkt. 10, Ex. H.

On February 8, 2012, Petitioner filed a habeas petition in the California Supreme Court. Dkt. 10, Ex. I. On May 16, 2012, the state supreme court denied the petition citing In re Robbins, 18 Cal.4th 770, 780 (1998). Dkt. 10, Ex. J.

On October 19, 2012, Petitioner filed his federal habeas petition in this Court. Dkt. 1.

On May 16, 2013, Respondent filed his motion to dismiss the petition as untimely. Dkt.

10. On August 1, 2013, Petitioner filed his opposition. Dkt. 13.

In its January 31, 2014 Order resolving the motion to dismiss, the Court acknowledged that Petitioner had raised a claim that he is entitled to equitable tolling based on his lack of access to his trial transcripts. Dkt. 15 at 6. The Court denied Respondent's motion to dismiss, finding that the record had not been adequately developed as to Petitioner's argument that he is entitled to equitable tolling based on his lack of access to his trial transcripts. Dkt. 15 at 9. The motion was denied without prejudice to refiling, provided Respondent could offer

... "countervailing evidence" to rebut Petitioner's equitable tolling claim, for example, evidence showing Petitioner did not suffer from a lack of access to his trial transcripts or other related evidence in the form of mail log records from the prison showing that Petitioner did not engage in the ...

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