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Prentice v. Sexton

United States District Court, E.D. California

April 28, 2017

TERRY LYN PRENTICE, Petitioner,
v.
MICHAEL SEXTON, Warden, [1]Respondent.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner is a state prisoner, currently incarcerated at California State Prison Corcoran (CSP-COR), [2] who proceeds pro se with this habeas corpus action filed under 28 U.S.C. § 2254, which challenges petitioner's 2005 convictions and sentence. This action proceeds on the federal petition filed July 31, 2016. See ECF No. 1. Petitioner paid the filing fee.

         Pending before the court is respondent's motion to dismiss, ECF No. 12, on the ground that petitioner commenced this action beyond the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d); and, alternatively, on the ground that petitioner failed to exhaust his state court remedies. Petitioner filed an opposition, ECF No. 17, and respondent filed a reply, ECF No. 18.

         This matter is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, the undersigned recommends that respondent's motion to dismiss be granted, and the petition be denied with prejudice.

         II. Chronology

         ● On April 18, 2005, in Butte County Superior Court, petitioner was convicted by jury trial on six counts of child molestation. Petitioner was sentenced to a determinate state prison term of eight years and four consecutive indeterminate state prison terms of fifteen years to life. See Lodged Documents (Lodg. Docs.) 1 & 2.

         ● On November 14, 2007, the California Court of Appeal, Third Appellate District, reversed the conviction on count two, and affirmed the judgment in all other respects. Lodg. Doc. 2.

         ● On December 14, 2007, petitioner filed a petition for review in the California Supreme Court, which was summarily denied on February 20, 2008. Lodg. Docs. 3 & 4.

         ● On January 24, 2016, proceeding pro se, petitioner filed a state petition for writ of habeas corpus in Butte County Superior Court. Lodg. Doc. 5. That petition alleges essentially the same claims presented in the instant federal petition. The petition was denied on February 18, 2016, for several reasons designated by “checks” on a form order. Lodg. Doc. 6.

         ● Petitioner filed the instant federal habeas petition on July 31, 2016. See ECF No. 1. Petitioner asserts three claims alleging the ineffective assistance of his trial counsel: (1) trial counsel failed to identify errors in the victim's testimony that allegedly demonstrated coaching and manipulation by an adult, and hence a lack of credibility; (2) trial counsel failed to interview important witnesses and to subpoena witnesses favorable to the defense; and (3) trial counsel failed to present all relevant facts, including those pertinent to petitioner's sentencing.

         III. Motion to Dismiss

         Respondent moves to dismiss this action with prejudice on the ground that the petition was untimely filed after expiration of AEDPA's one-year statute of limitations. See 28 U.S.C. § 2244(d). Alternatively, respondent moves to dismiss this action without prejudice on the ground that petitioner did not exhaust his state court remedies on his federal claims. See ECF No. 12.

         Petitioner responds, with the help of an inmate legal assistant, that he “is filing a late writ of habeas corpus [] because it's taken him 7 years to find somebody in prison that he can trust to talk about his case . . . . The issues that I'm raising are extremely complicated and require a level of legal sophistication that Mr. Prentice [-] who is poorly educated in general, and completely untrained in the law - cannot provide.” ECF No. 17 at 5. Petitioner asserts that the critical inquiry is “the date on which he became aware of facts that allowed him to assert in objective good faith that he was prejudiced by counsel's deficient performance, ” citing Hasan v. Galaza, 254 F.3d ...


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