Mil v. Frauenheim

          ORDER FINDINGS AND RECOMMENDATION TO DENY PETITIONER'S MOTION FOR EQUITABLE TOLLING, GRANT RESPONDENT'S MOTION TO DISMISS, AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS (ECF NOS. 2, 14)

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         I. BACKGROUND

         Petitioner was convicted by a jury in Kern County Superior Court of first-degree murder. The jury found true the special circumstances allegation that the murder was committed during a robbery and burglary. Petitioner was sentenced to an imprisonment term of life without the possibility of parole plus two years. (LD^[1] 1, 2). On June 17, 2010, the California Court of Appeal, Fifth Appellate District affirmed the judgment. (LD 2). On January 23, 2012, the California Supreme Court reversed the Court of Appeal's judgment to the extent it affirmed the jury's true finding on the special circumstances of murder in the commission of a robbery and burglary and the sentence of life without the possibility of parole. The case was remanded for resentencing or retrial on the issue of the special circumstances. People v. Mil, 53 Cal.4th 400, 419-20 (2012). On July 27, 2012, Petitioner was resentenced to an imprisonment term of twenty-five years to life plus two years. (LD 6). The resentencing was not appealed.

         On April 2, 2013, ^[2] Petitioner filed a state petition for writ of habeas corpus in the Kern County Superior Court, which denied the petition on July 24, 2013. (LDs 7, 8). On August 15, 2013, Petitioner filed a state habeas petition in the California Court of Appeal, Fifth Appellate District, which denied the petition on October 24, 2013. (LDs 9, 10). On September 14, 2013, Petitioner filed a federal petition for writ of habeas corpus in this Court, which dismissed the petition for nonexhaustion on February 19, 2014. (LDs 13, 16). On February 10, 2016, Petitioner filed a state habeas petition in the California Supreme Court, which summarily denied the petition on April 27, 2016.^[3]

         On February 13, 2016, Petitioner filed the instant federal petition for writ of habeas corpus along with a motion for equitable tolling. (ECF Nos. 1, 2). On April 29, 2016, Respondent filed a motion to dismiss. (ECF No. 14).

         II. DISCUSSION

         A. Statute of Limitation

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions. The AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Section 2244(d) provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward ...