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Cooper v. Martel

United States District Court, N.D. California

June 2, 2017

JAMES M. COOPER, Petitioner,
v.
MICHAEL MARTEL, Acting Warden,[1] Respondent.

          ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION AS UNTIMELY; AND DENYING CERTIFICATE OF APPEALABILITY.

          YVONNE GONZALEZ ROGERS United States District Judge.

         Petitioner James M. Cooper, a state prisoner who is currently incarcerated at the California Health Care Facility in Stockton, filed the instant pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         Before the Court is Respondent's motion to dismiss the instant petition because it: (1) is untimely under 28 U.S.C. § 2244(d)-the statute of limitations set by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"); and (2) raises only procedurally barred claims. Dkt. 16. Petitioner has filed an opposition. Dkt. 17. Respondent has filed a reply. Dkt. 18.

         Having considered all of the papers filed by the parties, the Court GRANTS Respondent's motion to dismiss the petition as untimely.

         I. BACKGROUND

         On February 15, 2011, the Sonoma County District Attorney filed an information [2]charging Petitioner with conspiracy (count 1; Cal. Penal Code § 182(a)(1)); kidnapping (count 2; Cal. Penal Code § 207); robbery (count 3; Cal. Penal Code § 211); assault (count 4; Cal. Penal Code § 245(a)(2)); grand theft (counts 5 & 7; Cal. Penal Code § 487(a), (d)(2)); and malicious injury to a telephone line (count 6; Cal. Penal Code § 591). Resp't Ex. A at 20-31; CT 100-111. As to each of the charges except the conspiracy charge, the information alleged that Petitioner had used and discharged a firearm (Cal. Penal Code § 12022.53(b), (c)). See id.

         On May 5, 2011, pursuant to a negotiated disposition in the Sonoma County Superior Court, Petitioner pleaded no contest to the robbery charge (count 3) and admitted that he was armed with a firearm, in exchange for suspended execution of a seven-year prison term, one year in county jail, three years of probation, and restitution. Resp't Ex. A at 39-41. The remaining charges were dismissed.[3] Id. These terms conformed to the written change of plea form that was signed by Petitioner, both attorneys, and the judge. Id. at 35-38.

         Also on May 5, 2011, the trial court sentenced Petitioner to seven years in prison, suspended execution of that sentence, imposed one year in county jail, and placed Petitioner on probation for three years. Id. at 40-42; Resp't Ex. B at 7-11. The judgment and sentence were executed on that same day, May 5, 2011. Id.

         Petitioner did not file a notice of appeal from his judgment, and his time for doing so expired on July 5, 2011, [4] which is sixty days after his sentence was executed on May 5, 2011. See Cal. Rule of Court 8.308(a) (providing that appeal from criminal judgment must be filed within sixty days after rendition of judgment or making of order being appealed).

         On July 12, 2012, the court found Petitioner in violation of probation, but only modified and reinstated probation. Resp't Ex. A at 91-92.

         On April 21, 2014, the court again found Petitioner in violation of probation. Id. at 109.

         On May 29, 2014, the court revoked probation and executed Petitioner's seven-year prison sentence. Resp't Ex. A at 110-111, Ex. C at 61.

         On August 18, 2014, [5] Petitioner filed a state habeas petition in the Sonoma County Superior Court, and the petition was denied on the merits on August 20, 2014. Resp't Ex. A at 125-126.

         On December 2, 2014, [6] Petitioner filed another habeas petition in the Sonoma County Superior Court, and the petition was denied on the merits on December 17, 2014. Resp't Ex. A at 147-153.

         On January 2, 2015, Petitioner filed a notice of appeal. Resp't Ex. A at 156-159. On April 14, 2015, the state appellate court dismissed the appeal because “[a]n order denying a petition for a writ of habeas corpus is not appealable” under California law. Resp't Ex D at 1.

         On February 13, 2015, [7] Petitioner filed a state habeas petition in the California Court of Appeal, and on June 19, 2015, the state appellate court denied the ...


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