United States District Court, C.D. California
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KENLY KIYA KATO, Magistrate Judge.
This Final Report and Recommendation is submitted to the Honorable Dale S. Fischer, 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.
SUMMARY OF RECOMMENDATION
Darryl Lavail Williams ("Petitioner"), a California state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254(d), challenging the sentence imposed for his 2005 convictions for second-degree robbery and felon in possession of a firearm. As discussed below, the Court finds the Petition untimely under the one-year statute of limitations for federal habeas petitions challenging state court convictions. Accordingly, the Court recommends the Petition be denied.
On March 1, 2005, following a jury trial in California Superior Court for the County of Los Angeles, Petitioner was convicted of: (1) second-degree robbery, in violation of California Penal Code section 211; and (2) felon in possession of a firearm, in violation of California Penal Code section 12021(a)(1). Pet. at 2. On March 10, 2005, the trial court sentenced Petitioner to twenty years in state prison. Id. at 20.
On February 15, 2006, the California Court of Appeal affirmed Petitioner's convictions on direct appeal. On April 26, 2006, the California Supreme Court denied review of the appeal. On October 2, 2006, the U.S. Supreme Court denied Petitioner's petition for a writ of certiorari.
Petitioner appears to have subsequently filed four state petitions for post-conviction relief: (1) a petition in the California Supreme Court on February 23, 2007, which was denied on October 10, 2007; (2) a petition in the Los Angeles County Superior Court on an unspecified date in 2013, which was denied on April 12, 2013; (3) a petition in the California Court of Appeal on August 5, 2013, which was denied on August 7, 2013; and (4) a petition in the California Supreme Court on December 5, 2013, which was denied on February 11, 2014. See Pet. at 22-27.
On January 5, 2015, Petitioner constructively filed the instant Petition. (ECF Docket No. ("dkt.") 1). In the Petition, Petitioner claims his March 2005 sentence was unlawfully imposed. (Id.). On January 15, 2015, the Court issued an Order to Show Cause Why This Action Should Not be Dismissed as Untimely ("OSC"), as the Petition appeared to be untimely on its face. (Dkt. 6). On February 2, 2015, Petitioner filed a response to the Court's OSC. (Dkt. 7).
On February 5, 2015, the Court issued a Report and Recommendation that the Petition be denied. (Dkt. 8). Petitioner has failed to file timely objections to the original Report. However, on March 10, 2015, the U.S. Court of Appeals for the Ninth Circuit issued a new opinion in Rudin v. Myles, withdrawing and superseding a prior opinion issued in the case on September 10, 2014. See Rudin v. Myles, ___ F.3d ___, 2014, 2015 WL 1019959, at *8 (9th Cir. 2015) (withdrawing and superseding Rudin v. Myles, ___ F.3d ___, 2014 WL 4435950 (9th Cir. 2014)). Because the original Report cited the now-withdrawn September 10, 2014 opinion, the Court herein issues a Final Report and Recommendation citing the March 10, 2015 decision instead.