United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER
ROBERT N. BLOCK, Magistrate Judge.
On September 2, 2014,  petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Pet.") herein. The Petition purported to be directed to a conviction sustained by petitioner in San Bernardino County Superior Court on October 13, 2004, following petitioner's guilty plea to three counts of elder abuse in violation of Cal. Penal Code § 368(b)(1) and his admission of special allegations that the abuse had caused death for one of the counts and great bodily injury for the other two. The Petition alleged (1) that the guilty plea was involuntary and unintelligent because petitioner was not advised during the plea colloquy that, in order to be guilty of the elder abuse charges, he "had to have an existing legal duty to act, care or control which petitioner did not have"; and (2) that his guilty plea was the product of ineffective assistance of counsel in that trial counsel failed to research the law or investigate the facts of the case and failed to advise petitioner of the essential elements of the elder abuse offense prior to advising petitioner to plead guilty.
Now pending before the Court and ready for decision is respondent's Motion to Dismiss on the ground that the Petition is time barred under 28 U.S.C. § 2244(d). Petitioner failed to file opposition to the Motion to Dismiss within the allotted time or request an extension of time to do so. For the reasons discussed hereafter, the Motion to Dismiss is granted and this action is dismissed with prejudice.
On October 13, 2004, the trial court sentenced petitioner in accordance with the terms of the negotiated plea bargain agreement to 18 years in state prison. Petitioner did not appeal from his conviction or sentence.
Petitioner's first collateral challenge took the form of a petition for writ of habeas corpus constructively filed in San Bernardino County Superior Court on or about June 14, 2013 (signature date). The claims raised in that petition generally corresponded to the two grounds for relief being alleged in the Petition herein and included the same claim also being made in the Petition herein that petitioner is actually innocent of the elder abuse charges (as well as the same supporting declarations from petitioner and his daughter). In an Order filed on August 29, 2013, the Superior Court denied the petition on the procedural ground that petitioner had substantially delayed seeking habeas relief and had not established good cause or justification for his delay. In its Order, the Superior Court also found that petitioner had not met his burden of establishing his actual innocence.
Next, petitioner constructively filed a habeas petition in the California Court of Appeal on October 22, 2013, in which he challenged the Superior Court's denial of his habeas petition and reasserted his actual innocence claim. That petition was summarily denied without comment or citation to authority on November 6, 2013.
Petitioner constructively filed a Petition for Review of the Court of Appeal decision on November 13, 2013 (proof of service date). The California Supreme Court summarily denied that petition without comment or citation to authority on January 15, 2014.
The constructive filing of the Petition herein followed over seven months later on September 2, 2014.
Since the Petition was filed after the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") on April 24, 1996, it is subject to the AEDPA's one-year limitation period, as set forth at 28 U.S.C. § 2244(d). See Calderon v. United States District Court for the Central District of California (Beeler), 128 F.3d 1283, 1287 n.3 (9th Cir. 1997), cert. denied, 522 U.S. 1099 and 523 U.S. 1061 (1998). 28 U.S.C. § 2244(d) provides:
"(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...