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Borunda v. Spearman

United States District Court, C.D. California

December 12, 2014

MARIO BORUNDA, Petitioner,
v.
MARION SPEARMAN, Warden, Respondent.

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

BEVERLY REID O'CONNELL, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the petition, records on file, and the Report and Recommendation of the magistrate judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected. The Court accepts the findings and recommendation of the magistrate judge.

On February 2, 2007, Petitioner pled no contest to residential burglary. (Petition at 2.) He was sentenced to 22 years in prison. The Report found that the federal habeas petition was time-barred by at least four years. (Report at 3 (constructive filing date here), 4 (statutory tolling), 5 (equitable tolling), 6 (date of discovery).)

The Report found that Petitioner's conviction became final on April 3, 2007, and the statute of limitations expired on April 3, 2008. (Report at 3.) The calculation of these dates was based on the finding that Petitioner did not appeal his conviction. ( Id. at 2, 3.)

In his objections, Petitioner states that he appealed the conviction. (Objections at 2.) On April 4, 2007, Petitioner submitted a Notice of Appeal with a request for a certificate of probable cause. (Objections, Ex. A at 1-2.) On April 10, 2007, Central Criminal Appeals referred the matter to the trial court for a ruling on Petitioner's request and asked the court to return the request to Central Criminal Appeals after ruling. ( Id. at 4.) On the same day, April 10, the trial court denied the request for a certificate of probable cause. ( Id. at 2.) On April 16, 2007, Central Criminal Appeals notified Petitioner that because his request for a certificate of probable cause was denied, his Notice of Appeal had been marked as "received, " not "filed, " and was placed in the case file with no further action. ( Id. at 5.)

"Under California law, the denial of a certificate of probable cause limits the scope of any direct appeal to the pre-plea denial of a motion to suppress evidence or grounds arising post-plea that do not challenge the plea's validity." Forch v. Paramo, 2014 WL 1289456, *5 (C.D. Cal. Jan. 31, 2014) (citing Cal Penal Code § 1237.5 & Cal. R. Ct. 8.304(b)), adopted by 2014 WL 1289787 (March 30, 2014). "Where a certificate of probable cause has been denied on the merits, the remedy is to seek review of the propriety of the denial through a[n]... application for a writ of mandate" within 60 days of the trial court's denial. Scott v. Brazelton, 2013 WL 5467474, *2 n.3 (C.D. Cal. Sept. 27, 2013).

Petitioner has not identified any timely writ of mandate he filed with the California Court of Appeal or indeed any direct appeal he submitted to the Court of Appeal. Therefore, his objection is OVERRULED.

Petitioner's remaining objections are without merit.

IT IS ORDERED that the petition is denied and the action dismissed with prejudice.


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