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Penn v. State

United States District Court, C.D. California, Western Division

July 5, 2017

JAMES HENRY PENN, Petitioner
v.
STATE OF CALIFORNIA, Respondent.

          MEMORANDUM DECISION AND ORDER

          PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE

         I. SUMMARY OF PROCEEDINGS

         In 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.).

         Petitioner 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.

         On 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).

         Over 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).

         On 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.

         II. PETITIONER'S CONTENTION

         The trial court imposed an illegal sentence by applying a single sentencing factor to justify multiple increases to petitioner's sentence. (Pet. at 5).

         III THE PETITION IS BARRED BY THE STATUTE OF LIMITATIONS

         Respondent 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).

         A. The Limitations Period

         The 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).

         The AEDPA imposes a one-year period of limitation for state prisoners to file a federal petition for writ of habeas corpus. 28 ...


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