United States District Court, C.D. California
For Rigoberto Martinez, Petitioner: Carlos Joel Perez, LEAD ATTORNEY, The Defenders Law Group, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
PATRICK J. WALSH, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Hon. Otis D. Wright, II, 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 discussed below, it is recommended that the Petition be denied and the action be dismissed with prejudice.
SUMMARY OF PROCEEDINGS
A. State and Federal Court Proceedings
In December 2008, a jury in Los Angeles County Superior Court found Petitioner guilty of attempted murder. (Petition at 2.) The jury also determined that a principal intentionally discharged a firearm causing great bodily injury and that the crime was committed for the benefit of a criminal street gang. (Petition at 2.) In February 2009, he was sentenced to life plus 25 years in prison. (Petition at 2.)
Petitioner appealed to the California Court of Appeal, which affirmed his conviction in November 2010. (Petition at 2.) He then filed a petition for review in the California Supreme Court, which was denied on February 16, 2011. (Petition at 3.)
On May 16, 2012, Petitioner, who was represented by counsel, filed a petition in this court, pursuant to 28 U.S.C. § 2254, raising six grounds for relief that he had presented to the state courts plus additional claims that he acknowledged had not been raised there. Petitioner moved to have the Court stay the proceedings so that he could exhaust the unexhausted claims in state court and then return to pursue all of his claims. The Court denied the motion, leaving him with the option of pursuing only his exhausted claims in federal court or dismissing the action, returning to the state court to exhaust his remaining claims, and then re-filing in this court. Martinez v. Biter, CV 12-4274-ODW (PJW) (March 12, 2013 Order). Petitioner and his counsel were warned that his Petition was subject to a one-year statute of limitations and that the time his case had been pending in federal court did not toll the statute. Petitioner elected to dismiss the Petition and, on April 8, 2013, the Court granted his request. Martinez v. Biter, CV 12-4274-ODW (PJW) (Judgment).
Thereafter, Petitioner returned to state court to exhaust his additional claims. On January 13, 2014, the Los Angeles Superior Court denied Petitioner's habeas corpus petition. (Petition at 3.) On February 18, 2014, the California Court of Appeal denied his petition, and on April 9, 2014, the California Supreme Court denied his petition. (Petition at 3.)
B. Pending Federal Petition
On April 30, 2014, Petitioner, represented by counsel, filed the instant Petition in this Court, pursuant to 28 U.S.C. § 2254. In it, he claims that his conviction was the result of perjured testimony, which he attempts to establish through the victim's declaration recanting his trial testimony. He also alleges that his appellate counsel was ineffective for failing to argue that trial counsel's representation was ineffective and that Petitioner's statement to police was the product of a coercive interrogation. (Petition at 4-5.)
On May 1, 2014, the Court issued an Order to Show Cause as to why the Petition should not be dismissed on the ground that it was untimely. See Mayle v. Felix, 545 U.S. 644, 656, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (finding district court has duty to screen petitions before service); see also Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (approving district court's sua sponte examination of petition for timeliness). On July 3, 2014, Petitioner filed a response to the order to show cause, conceding that the Petition was not filed within one year of the state court judgment becoming final but arguing that it should still be considered ...