United States District Court, C.D. California, Western Division
Travion Terrett Ford, Petitioner, Pro se, Lancaster, CA.
For Soto, Warden, Respondent: Colleen M Tiedemann, David C Cook, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
DOUGLAS F. McCORMICK, United States Magistrate Judge.
This Final Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On August 31, 2009, Petitioner Travion Terrett Ford was convicted by a Los Angeles County Superior Court jury of one count of second-degree murder with a knife. Respondent's Notice of Lodging, Lodged Document (" LD") 1 at 1. The trial court sentenced Petitioner to a state prison term of 16 years to life. LD 1 at 2.
Petitioner appealed to the California Court of Appeal on grounds including those alleged in his Petition to this Court. See LD 2, Exh. 1 at 2. On July 8, 2011, the California Court of Appeal rejected Petitioner's claims in a written opinion on the merits. LD 2, Exh. 1. On October 12, 2011, Petitioner's petition for review was summarily denied by the California Supreme Court. LD 3.
On July 9, 2013, Petitioner constructively filed a Petition for Writ of Habeas Corpus by Person in State Custody pursuant to 28 U.S.C. § 2254. See Dkt. 1 (" Petition"). He raised the following claims for relief: (1) the trial court violated his right to due process by its failure to properly instruct the jury regarding the definition of mutual combat; (2) the trial court violated due process by its failure to adequately instruct the jury regarding Petitioner's right to use deadly force in self-defense; (3) defense counsel's failure to object to these erroneous instructions or request further instructions constituted ineffective assistance of counsel; and (4) the trial court violated due process when it erroneously excluded evidence of the victim's combat training. Petition at 7-10.
On August 6, 2013, the previously-assigned U.S. Magistrate Judge issued an order directing Petitioner to show cause why his petition should not be dismissed with prejudice because it was barred by the applicable one-year statute of limitations. See Dkt. 3. The order to show cause told Petitioner that the Petition appeared to be untimely and directed Petitioner to set forth a factual and legal basis for a claim that the statute of limitations should be tolled or the start date extended. See id. at 6. On October 2, 2013, Petitioner filed a response in which he argued that his Petition was untimely because he lost access to his legal materials as the result of a library lockdown in November 2012. See Dkt. 9 (" Response").
On October 4, 2013, this Court issued an order discharging the order to show cause and requiring a response to the Petition, noting that it was unable to determine from the record without the benefit of Respondent's input whether Petitioner was potentially entitled to equitable tolling. See Dkt. 10 at 2. The order further provided that Respondent had 30 days to file a motion to dismiss and that Petitioner's opposition would be due within 20 days of service of any such motion. Id.
After being granted extensions of time, on January 31, 2014, Respondent moved to dismiss the Petition on the ground that it was untimely under 28 U.S.C. § 2244(d). ...