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Gibbs v. Johnson

United States District Court, E.D. California

July 13, 2017

OLATUNDI LEANN GIBBS, Petitioner,
v.
DEBORAH K. JOHNSON, Respondent.

          ORDER

          KENDALL J. NEWMAN UNITED STATES MAGISTRAL JUDGE.

         I. Introduction

         Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the undersigned. (ECF Nos. 13, 16.) Petitioner challenges her 2014 conviction for second degree robbery, in violation of California Penal Code § 211, and use of a deadly or dangerous weapon in commission of the robbery, in violation of California Penal Code § 12022(b)(1). (Respondent's Lodged Document 1.)

         This action proceeds on the original petition filed June 27, 2016.[1] The petition raises the following claims: 1) after petitioner arrived in prison, her conviction was changed from a violation of California Penal Code § 211 to a violation of California Penal Code § 212.5 (claim one); 2) insufficient evidence to support petitioner's conviction for use of a deadly weapon because the knife was in her co-defendant's bag (claim two); and 3) trial counsel was ineffective for failing to call the Walmart security guard to the stand (claim 3).

         Pending before the court is respondent's motion to dismiss on grounds that this action is barred by the statute of limitations. (ECF No. 14.) For the reasons stated herein, respondent's motion is granted with respect to claims 2 and 3. For the reasons stated herein, claim 1 is denied because petitioner is not entitled to relief as to this claim. II. Claim 1 Petitioner alleges that she was convicted of second degree robbery in violation of California Penal Code § 211. Petitioner alleges that after she arrived in prison, she discovered that her conviction had been changed to a violation of California Penal Code § 212.5.

         Petitioner's abstract of judgment states that petitioner was convicted of violating California Penal Code § 211, second degree robbery. (Respondent's Lodged Document 1.) Attached to the petition is a document titled “Legal Status Summary.” (ECF No. 1 at 8.) This document indicates that it was prepared by the California Department of Corrections and Rehabilitation (“CDCR”). (Id.) The Legal Status Summary states that petitioner was convicted of second degree robbery in violation of California Penal Code § 212.5(c). (Id.)

         California Penal Code § 212.5 defines the degrees of robbery. Subsection (c) of this section states that “[a]ll kinds of robbery other than those listed in subdivisions (a) and (b) are of the second degree.” Cal. Penal Code § 212.5(c). Therefore, petitioner's conviction was not changed from a violation of § 211 to a violation of § 212.5(c). Rather, the citation to § 212.5(c) in the Legal Status Summary is another way of stating that petitioner was convicted of second degree robbery. Moreover, there is no evidence that the official records of petitioner's conviction, such as the abstract of judgment, were changed to reflect a violation of the California Penal Code other than § 211.

         For the reasons discussed above, petitioner's claim that her conviction was improperly changed by the CDCR following her incarceration is without merit. Accordingly, this claim is dismissed. See Rule 4 of the Federal Rules Governing Section 2254 Cases (court may dismiss petition if it plainly appears that petitioner is not entitled to relief).

         III. Statute of Limitations

         A. Calculation of Limitations Period

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. This statute of limitations provides that, A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody, pursuant to the judgment of a State court. The limitation period shall run from the latest of -

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244 (d)(1).

         On October 24, 2014, petitioner was sentenced. (Respondent's Lodged Document 1.) Petitioner did not appeal the judgment. Accordingly, her conviction became final 60 days later, on December 23, 2014, when the time for filing an appeal expired. See Cal. Rule of Court 8.308(a) (notice of appeal must be filed within 60 days of criminal judgment); see also Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006) (California conviction becomes final 60 days after judgment if not appealed). Respondent argues, and the undersigned agrees, that the statute of limitations began running the following day, December 24, 2014. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (the AEDPA limitations period begins to run on the day after the triggering event pursuant to Fed.R.Civ.P. 6(a)).

         Petitioner had until December 24, 2015, to file a timely federal petition. The instant action, filed June 27, 2016, is not timely unless petitioner ...


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