United States District Court, C.D. California, Western Division
MEMORANDUM DECISION AND ORDER
L. ABRAMS UNITED STATES MAGISTRATE JUDGE
SUMMARY OF PROCEEDINGS
2004, a Los Angeles County Superior Court jury found
petitioner guilty of two counts of second degree robbery, in
violation of California Penal Code section 211, and one count
of evading a police officer, in violation of California Penal
Code section 2800.2 (Respondent's Notice of Lodging No.
1). The jury also found that a principal personally used a
handgun in committing the charged robberies. (Cal. Penal Code
§ 12022.53). (Id.). Subsequently, petitioner
admitted that he had been convicted of a serious felony and
that he had served a prior prison term (Cal. Penal. Code
§§ 667, 1170.12). (Id.). The trial court
sentenced petitioner to twenty-eight years and four months in
state prison. (Id.).
appealed his conviction and sentence. (See id.). On
August 24, 2005, the California Court of Appeal affirmed the
judgment. (Id.). Petitioner did not file a petition
for review in the California Supreme Court.
September 13, 2006, petitioner filed a petition for writ of
habeas corpus in the Los Angeles County Superior Court, which
was denied on November 2, 2006. (See Lodgment No. 2
at 13-14). Petitioner then filed a petition for writ of
habeas corpus in the California Court of Appeal, which was
denied on January 25, 2007. (Lodgment Nos. 3-4). Petitioner
then filed a petition for writ of habeas corpus in the
California Supreme Court, which was denied on July 11, 2007.
(Lodgment Nos. 5-6).
eight years later, on February 16, 2016, petitioner initiated
another series of unsuccessful state collateral attacks on
his conviction and sentence, the last of which was denied by
the California Court of Appeal on November 2, 2016. (Lodgment
No. 2 at 14-15, 18-20; Lodgment Nos. 7-16).
December 12, 2016, petitioner constructively filed his
Petition in this Court and consented to have the undersigned
Magistrate Judge conduct all further proceedings in this
matter. (Docket Nos. 1-2). Respondent, likewise, consented to
have the undersigned Magistrate Judge conduct all further
proceedings and, thereafter, filed a Motion to Dismiss the
Petition. (Docket Nos. 13-14). On June 23, 2017, petitioner
field an Opposition to the Motion to Dismiss. (Docket. No.
18). This matter has been taken under submission, and is
ready for decision.
trial court imposed an illegal sentence by applying a single
sentencing factor to justify multiple increases to
petitioner's sentence. (Pet. at 5).
THE PETITION IS BARRED BY THE STATUTE OF
argues that the Petition is barred by the one-year statute of
limitations as prescribed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2244(d)(1). (Motion to Dismiss at 5-10).
The Limitations Period
Petition was filed after the enactment of the AEDPA. Pub. L.
No. 104-132, 110 Stat. 1214 (1996). Therefore, the Court
applies the AEDPA in its review of this action. See Lindh
v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138
L.Ed.2d 481 (1997).
AEDPA imposes a one-year period of limitation for state
prisoners to file a federal petition for writ of habeas
corpus. 28 ...