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Freeman v. C. Tampkins

United States District Court, Central District of California

November 4, 2014

ERNEST FREEMAN III, Petitioner,
v.
C. TAMPKINS, Respondent

Ernest Freeman, III, Petitioner, Pro se, Norco, CA.

For C Tampkins, Respondent: David Zarmi, CAAG - Office of Attorney General, Los Angeles, CA; Kenneth C Byrne, CAAG - Office of Attorney General, California Department of Justice - Supervising Deputy AG, Los Angeles, CA; Lance E Winters, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO DISMISS ACTION AS UNTIMELY

Hon. Jay C. Gandhi, United States Magistrate Judge.

I.

INTRODUCTION AND SUMMARY

On October 20, 2013, petitioner Ernest Freeman III (" Petitioner"), a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (" Petition").[1] [Dkt. No. 1.] On December 20, 2013, the Court filed a Report and Recommendation (" R& R"), recommending that the Petition be dismissed as untimely. [Dkt. No. 5.] On January 9, 2014, Petitioner filed an Objection to the R& R, which raised doubts as to whether Petitioner's limitation period had been sufficiently tolled. [Dkt. No. 6.] Accordingly, on June 12, 2014, the Court vacated its R& R. [Dkt. No. 8.]

On September 9, 2014, Respondent filed a Motion to Dismiss the Petition (" Motion"), asserting that the Petition is indeed barred by the one-year limitation period set forth in 28 U.S.C. § 2244(d). [Dkt. No. 17.]

No Opposition was filed.[2]

Now, as detailed below, the Court recommends that the Petition be dismissed with prejudice as untimely.

II.

STATE COURT PROCEEDINGS

On July 15, 2008, Petitioner was convicted of assault with a deadly weapon. (Lodg. No. 1.) Petitioner was also found to have personally inflicted great bodily injury under circumstances involving domestic violence. (Id.) On July 31, 2008, Petitioner was sentenced to state imprisonment for 13 years. (Id.)

On December 10, 2009, the California Court of Appeal affirmed the conviction, but remanded for resentencing. (Lodg. No. 2 at 8-9.) On January 7, 2010, Petitioner filed a petition for review in the California Supreme Court, which was summarily denied on February 18, 2010. (Lodg. Nos. 3, 4.)

On October 21, 2010, the Superior Court resentenced Petitioner to state imprisonment for ...


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