United States District Court, C.D. California, Western Division
Mauricio Ayala, Petitioner, Pro se, Corcoran, CA.
For Ralph M. Diaz, Warden, Respondent: Charles S Lee, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
STEPHEN J. HILLMAN, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Dolly M. Gee, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons stated below, the Petition for a Writ of Habeas Corpus should be denied and this action should be dismissed.
Pro se petitioner, a prisoner in the custody of the California Department of Corrections and Rehabilitation, challenges his 2007 conviction in California Superior Court, Los Angeles County (Case No. NA074693).
On June 19, 2014, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody (" Petition") herein. As best the Court can glean from petitioner's allegations, the Petition alleges the following claims: (1) Petitioner's confession was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in violation of petitioner's rights under the Fifth and Sixth Amendments; and (2) Petitioner received ineffective assistance of counsel based on his trial counsel's failure to move to suppress petitioner's confession. (Petition at 5, Attachments A and B).
Respondent filed an Initial Answer to the Petition on July 10, 2014. After receiving extensions of time, respondent filed a Return to the Petition (" Return") on October 8, 2014. In the Return, respondent solely contends that the Petition should be dismissed because it is barred by the one-year statute of limitations.
Petitioner did not file a Reply to the Return, or request an extension of time to do so.
Thus, this matter now is ready for decision.
II. PROCEDURAL HISTORY
On June 30, 2008, a Los Angeles County Superior Court jury found petitioner guilty of one count of shooting from a motor vehicle (Count 2), one count of assault with a semi-automatic firearm (Count 3), and one count of possession of a firearm by a felon (Count 4). In addition, the jury found true the following special allegations: that in the commission of the shooting from a motor vehicle, petitioner personally and intentionally discharged a firearm, i.e., a handgun, which proximately caused great bodily injury to the victim, and petitioner personally and intentionally discharged a firearm, i.e., a handgun; that in the commission of the attempted murder, petitioner personally and intentionally discharged a firearm, which caused great bodily injury upon the victim; that in the commission of the assault with a semi-automatic firearm, petitioner personally used a firearm, i.e. a handgun, and petitioner personally inflicted great bodily injury upon the victim; and that the possession of a firearm by a felon was committed for the benefit of, at the direction of, and/or in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. (See Clerk's Transcript [" CT" ] 116-20). On September 5, 2008, the trial court sentenced petitioner to state prison for a total of 32 years to life, consisting of: 7 years for the shooting from a motor vehicle offense, plus a consecutive term of 25 years to life for the personal and intentional discharge of a firearm, which proximately caused great bodily injury finding; a concurrent, stayed term of 9 years for the assault with a semi-automatic firearm offense, plus a stayed 10-year term for the personal use of a firearm finding and a stayed term for the personal infliction of great bodily injury finding; and stayed terms for the possession of a firearm by a felon offense and the criminal street gang finding. (See CT 138-42).
Petitioner appealed his conviction to the California Court of Appeal. (See respondent's Notice of Lodging [" Lodgment" ] Nos. 2 and 4). In an unpublished Opinion issued on December 15, 2009, the California Court of Appeal reversed and struck the criminal street gang finding, remanded the matter to the trial court to correct the abstract of judgment to reflect the stricken criminal ...