United States District Court, E.D. California
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)
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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, 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.
April 2, 2013,  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.
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).
Statute of Limitation
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 ...