Galvez v. Tampkins

          MEMORANDUM DECISION AND ORDER

          PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE

         I SUMMARY OF PROCEEDINGS

         On September 22, 2011, a Los Angeles County Superior Court jury found petitioner guilty of one count of corporal injury to a spouse/cohabitant/child's parent (Cal. Penal Code § 273.5(a)), one count of child abuse (Cal. Penal Code § 273a(a)), one count of criminal threats (Cal. Penal Code § 422), and three counts of assault by means likely to produce great bodily injury or with a deadly weapon (Cal. Penal Code § 245(a)(1)). (Reporter's Transcript ("RT") 4502-05; Clerk's Transcript ("CT") 156-61, 214-15). The trial court sentenced petitioner to a term of nine years and eight months in state prison. (RT 4801, 4809-13; CT 209-15).

         On direct appeal, the California Court of Appeal affirmed the judgment. (Lodgment Nos. 3, 6). On June 12, 2013, the California Supreme Court denied petitioner's petition for review. (Lodgment Nos. 7, 8).

         On January 15, 2016, petitioner filed the instant Petition in this Court, and consented to have the undersigned Magistrate Judge conduct all further proceedings in this matter. On April 21, 2016, respondent filed a Motion to Dismiss. On April 22, 2016, respondent consented to have the undersigned Magistrate Judge conduct all further proceedings.

         On May 17, 2016, respondent notified the Court that she had been unable to serve petitioner with the Motion to Dismiss and other filings. According to respondent, the documents had been mailed to petitioner at his address of record, the California Rehabilitation Center in Norco, California, but were returned to respondent marked "ATTEMPTED -- NOT KNOWN" and "UNABLE TO FORWARD, " and well as with the handwritten notation "Paroled." Respondent also stated that a search of the State of California Inmate Locator website (http://inmatelocator.cdcr.ca.gov) did not yield any results for petitioner. (Docket No. 21).

         On May 25, 2016, the Court ordered petitioner to file an Opposition to the Motion to Dismiss by June 17, 2016. (Docket No. 23). The Court's May 25, 2016, Order was returned to the Court as undelivered with a handwritten notation indicating that petitioner was paroled.^[1] (Docket No. 24). To date, petitioner has not filed anything in response to the Court's May 25, 2016, Order, and has filed nothing in opposition to the Motion to Dismiss.

         This matter has been taken under submission, and is ready for decision.

         II PETITIONER'S CONTENTION

         Petitioner contends that the evidence was insufficient to support the conviction. (Petition Attachment at 1-10).

         III THE PETITION IS BARRED BY THE STATUTE OF LIMITATIONS

         Respondent argues that the Petition is barred by the one-year statute of limitations as prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2244(d)(1). (Motion to Dismiss at 4-5).

         A. THE LIMITATIONS PERIOD

         The Petition was filed after the enactment of the AEDPA. Pub. L. No. 104-132, 110 Stat. 1214 (1996). Therefore, the Court applies the AEDPA in its review of this action. See Lindh v. Murphy, 5 ...