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Benitez v. Spearman

United States District Court, C.D. California

May 2, 2017

Fernando Benitez
v.
Spearman

          Present: The Honorable Kenly Kiya Kato, United States Magistrate Judge

          CIVIL MINUTES-GENERAL

         Proceedings: (In Chambers) Order to Show Cause Why This Action Should Not Be Dismissed As Untimely [Dkt. 1]

         I. INTRODUCTION

         Petitioner Fernando Benitez (“Petitioner”) has filed a pro se Petition for Writ of Habeas Corpus (“Petition”) by a Person in State Custody pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction and sentence based on the following claim: “Trial Court imposed an illegal enhancement according to newly decided case law by the California Supreme Court.”[1]See ECF Docket (“Dkt.”) No. 1, Pet. at 5. However, the Petition appears to be untimely on its face. The Court thus orders Petitioner to show cause why this action should not be dismissed as untimely.

         II. BACKGROUND

         On February 10, 2010, in Los Angeles County Superior Court, Petitioner was convicted of first degree and second degree robbery in violation of Section 211 of the California Penal Code, with a gang enhancement under Section 186.22(b)(1)(c) of the California Penal Code and a firearm enhancement under Section 12022.53(B) of the California Penal Code. See Pet. at 1. Petitioner was sentenced to a term of seventeen years and four months. Id.

         Petitioner filed a state habeas petition in the Los Angeles Superior Court, which was denied on August 21, 2015. Id. at 2, 3.

         On September 17, 2015, Petitioner filed a state habeas petition in the California Court of Appeal. See California Courts, Appellate Courts Case Information, Docket (April 28, 2017, 3:20 PM) http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc-id=2120443 & div=8&doc-no=B266872. On October 14, 2015, the California Court of Appeal denied the petition. Id.; Pet. at 2, 3.

         On January 25, 2016, Petitioner filed a state habeas petition in the California Supreme Court[2] See California Courts, Appellate Courts Case Information, Docket (April 28, 2017, 3:20 PM) http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc-id=2131558 &doc-no=S232057. On April 13, 2016, the California Supreme Court denied the petition. Id.

         On April 2, 2017, Petitioner constructively[3] filed the instant Petition. Pet. at 7.

         III. DISCUSSION

         A. THE PETITION WAS FILED AFTER AEDPA'S ONE-YEAR LIMITATIONS PERIOD

         Petitioner filed the Petition after April 24, 1996, the effective date of AEDPA. Pet. at 7. Therefore, the requirements for habeas relief set forth in AEDPA apply. Soto v. Ryan, 760 F.3d 947, 956-57 (9th Cir. 2014). AEDPA “sets a one-year limitations period in which a state prisoner must file a federal habeas corpus petition.” Thompson v. Lea, 681 F.3d 1093, 1093 (9th Cir. 2012) (citation omitted). Ordinarily, the limitations period runs from the date on which the prisoner's judgment of conviction “became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1) (“Section 2244(d)(1)”). Under the California Rule of Court 8.308(a), the time for appealing a conviction and sentence expires sixty days “after the rendition of the judgment or the making of the order being appealed.” Cal. R. Ct. 8.308(a); Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994).

         Here, there is no indication Petitioner sought direct review of his conviction. Accordingly, Petitioner's conviction became final on April 11, 2010, i.e., sixty days after the date of Petitioner's conviction. See Cal. R. Ct. 8.308(a); Caspari, 510 U.S. at 390. AEDPA's one-year limitations period commenced the next day, April 12, 2010, and expired on April 12, 2011. See 28 U.S.C. ยง 2244(d)(1). However, Petitioner constructively filed the instant Petition on April 2, 2017. Pet. at 7. Therefore, in the ...


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