Castro v. Madden

          Glenn S. Martinez Castro, Petitioner, Pro Se.

          Raymond Madden, Respondent, represented by David Delgado-Rucci, CAAG - Office of the Attorney General.

          FINAL REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KENLY KIYA KATO, Magistrate Judge.

         This Final Report and Recommendation is submitted to United States District Judge Beverly Reid O'Connell, pursuant to Title 28 of the United States Code, section 636 and General Order 05-07 of the United States District Court for the Central District of California.

         I.

         SUMMARY OF RECOMMENDATION

         Petitioner Glenn S. Martinez Castro ("Petitioner") has filed a First Amended Petition ("FAP") for Writ of Habeas Corpus by a Person in State Custody under Title 28 of the United States Code, section 2254 ("Section 2254"). Respondent Raymond Madden ("Respondent") has filed a Motion to Dismiss ("Motion") the FAP. As discussed below, the Court recommends granting the Motion and dismissing this action with prejudice as untimely.

         II.

         PROCEDURAL BACKGROUND

         A. STATE COURT PROCEEDINGS

         On August 27, 2012, Petitioner pled guilty to: (1) two counts of robbery within the meaning of California Penal Code section 211; and (2) enhancements for personally using a firearm during the commission of the robberies, participating in a criminal street gang, and serving a prior prison or jail term within the meaning of California Penal Code sections 12022.53(b), 186.22(b)(1)(A), and 667.5(b) in the Riverside County Superior Court. Lodged Document^[1] No. ("Lodg.") 1 at 5. Petitioner was sentenced to a term of twenty-four years in prison. Id. at 8. Petitioner did not appeal his conviction in the California Court of Appeal or California Supreme Court.

         On May 10, 2015, Petitioner constructively filed^[2] his first state habeas petition in the Riverside County Superior Court. Lodg. 2. On May 26, 2015, the Riverside County Superior Court denied the petition. Lodg. 3.

         On July 16, 2015, Petitioner constructively filed his second state habeas petition in the California Court of Appeal. Lodg. 4. On August 4, 2015, the California Court of Appeal denied the petition. Lodg. 5.

         On October 8, 2015, Petitioner constructively filed his third state habeas petition in the California Supreme Court. Lodg. 6. On January 20, 2016, the ...