United States District Court, C.D. California
Billy Driver, Jr, Petitioner, Pro Se, Lancaster, CA.
Jerry Brown, Gov, Respondent: Michael G Lagrama, LEAD ATTORNEY, CAAG - Office of Attorney General, San Francisco, CA; Charles Chung, Kim Aarons, CAAG - Attorney General Office, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ALICIA G. ROSENBERG, United States Magistrate Judge.
The court submits this Report and Recommendation to the Honorable Beverly Reid O'Connell, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California. For the reasons set forth below, the magistrate judge recommends that Respondent's motion to dismiss be granted and the Petition for Writ of Habeas Corpus be denied.
SUMMARY OF PROCEEDINGS
According to the Petition, in June 1986 Petitioner pled guilty to robbery, possession of a firearm, and possession of controlled substances. Pursuant to a plea agreement, he was sentenced to 50 years in prison. (Petition at 2.) Petitioner did not appeal. (Id.)
On September 17, 2012, Petitioner signed a habeas petition addressed to the Los Angeles County Superior Court. (Dkt. No. 1-4 at 18.) On December 20, 2012, Petitioner filed a petition for writ of mandate in the California Court of Appeal, which was denied on December 21, 2012. (Dkt. No. 1-2 at 20.) On April 24, 2013, Petitioner filed a petition for writ of mandate in the California Supreme Court, which transferred it to the Court of Appeal on April 29, 2013, and which was denied as " repetitive" on May 9, 2013. (Id. at 19.) On September 11, 2013, Petitioner filed a habeas petition in the Los Angeles County Superior Court. On November 5, 2013, the court ordered an " informal letter response" from the Los Angeles Attorney General's office. (Id. at 35.) On September 20, 2013, Petitioner filed a habeas petition in the Court of Appeal, which was denied on October 25, 2013. (Id. at 17.) On December 6, 2013, Petitioner filed a habeas petition in the California Supreme Court, which was denied on February 26, 2014. Dkt. No. 1-2 at 5; Dkt. No. 1 at 16.)
On March 5, 2014, Petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody in this court. (Petition, back of envelope.) He raises three grounds. (Id. at 5-6.)
On June 13, 2014, Respondent filed a motion to dismiss (" MTD") based on expiration of the statute of limitations. On July 11, 2014, Petitioner filed an opposition. On July 17, 2014, Respondent filed a reply.
STATUTE OF LIMITATIONS
In Ground One Petitioner argues that based on his understanding of the plea agreement, he should have been released from prison in December 2010. Petition at 5.) He alleges that in exchange for a guilty plea he would serve 25 years in prison (50 years at half time). (Petition, Memo at 1.)
The Petition was filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"). Therefore, the court applies the AEDPA in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
The AEDPA has a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The limitation period starts running on the latest of either the date when a conviction becomes final under 28 U.S.C. § 2244(d)(1)(A) or a date set in § 2244(d)(1)(B)-(D). The only ...