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Bowman v. Perry

United States District Court, S.D. California

July 27, 2016

JERRY BRYANT BOWMAN, II, Petitioner,
v.
SUSAN PERRY, Warden, et al., Respondents.

          ORDER: (1) GRANTING MOTION TO DISMISS [ECF NO. 23]; AND (2) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS MOOT [ECF NO. 33]

          Hon. Cynthia Bashant, Uaited States District Judge.

         I. INTRODUCTION

         Petitioner Jerry Bryant Bowman, a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenges his 2010 conviction in San Diego Superior Court case no. SCS227759. (Am. Pet., ECF No. 9.) The Court has read and considered the Petition [ECF No. 9], the Motion to Dismiss and Memorandum of Points and Authorities in Support of the Motion to Dismiss [ECF No. 23], Petitioner’s Opposition to the Motion to Dismiss [ECF No. 31], the lodgments and other documents filed in this case, and the legal arguments presented by both parties. For the reasons discussed below, the Court GRANTS Respondent’s motion to dismiss [ECF No. 23], and DENIES Bowman’s motion to proceed in forma pauperis [ECF no. 33] as moot.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         Bowman was convicted of robbery and false imprisonment in San Diego County Superior Court case no. SCS227759 in 2010. (See Lodgment No. 10 at 1; People v. Bowman, 202 Cal.App.4th 353 (2011).) He was sentenced to 16 years in prison. Bowman, 202 Cal.App.4th at 356.

         Bowman appealed his conviction to the California Court of Appeal for the Fourth Appellate District, which affirmed the conviction in a published opinion. Bowman, 202 Cal.App.4th 353. Bowman filed a petition for review in the California Supreme Court, which the Court denied on March 14, 2012, without citation of authority. (Lodgment No. 1.)

         Bowman then filed a petition for writ of habeas corpus in the California Court of Appeal for the Fifth Appellate District on November 20, 2012. (Lodgment No. 2.) That Court denied the petition on November 30, 2012. (Id.)

         Next, Bowman constructively filed a petition for writ of habeas corpus in the California Supreme Court on January 10, 2013. (Lodgment No. 3.)[1] That Court denied the petition without citation of authority on June 12, 2013. (Lodgment No. 4.)

         Bowman then constructively filed a petition for writ of habeas corpus in the California Court of Appeal for the Fourth Appellate District on September 16, 2014. (Lodgment No. 5.) That Court denied the petition in a written opinion on September 30, 2014. (Lodgment No. 6.)

         Thereafter, Bowman constructively filed a petition for writ of habeas corpus in the California Supreme Court October 17, 2014. (Lodgment No. 7.) The Court denied that petition on April 1, 2015, citing In re Robbins, 18 Cal.4th 770, 780 (1988), and In re Clark, 5 Cal.4th 750, 767-69 (1993). (Lodgment No. 8.)

         Next, Bowman constructively filed a petition for writ of habeas corpus in the California Court of Appeal for the Fourth Appellate District on May 26, 2015. (Lodgment No. 9.) That Court denied the petition in a written opinion on June 11, 2015. (Lodgment No. 10.)

         Bowman constructively filed his final state court habeas corpus petition in the California Supreme Court on June 28, 2015. (Lodgment No. 11.) That Court denied the petition without citation of authority on October 21, 2015. (Lodgment No. 12.)

         Bowman constructively filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court on May 22, 2015 [ECF No. 1], and an Amended Petition on July 22, 2015 [ECF No. 9]. An Order granting Bowman leave to amend his petition was filed on December 3, 2015 [ECF No. 18], but Bowman never filed a second amended petition. Respondent filed a motion to dismiss on March 18, 2016 [ECF No. 23]. Bowman filed an opposition to the motion on May 25, 2016 [ECF No. 31]. Bowman subsequently filed supplemental documents in support of his petition and medical records in support of his petition [ECF Nos. 34, 35].[2]

         III. DISCUSSION

         Although it is difficult to discern the exact nature of Bowman’s claims from his filings, as best the Court can determine Bowman alleges his sentence was improper, his trial attorney was ineffective for failing to attack his sentence, his appellate attorney was ineffective for failing to raise the improper sentence and ineffective assistance of counsel claims, and the state court’s denial of his request to be resentenced under Proposition 47 was improper. (See Am. Pet. at 6-10, 38.) Respondent contends Bowman’s claims regarding his sentence and conviction are time barred, and that his Proposition 47 claim is meritless. (Mot. to Dismiss at 4-8.)

         A. ...


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