United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRAL JUDGE.
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.)
action proceeds on the original petition filed June 27,
2016. 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).
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 §
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).
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.
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).
Statute of Limitations
Calculation of Limitations Period
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).
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)).
had until December 24, 2015, to file a timely federal
petition. The instant action, filed June 27, 2016, is not
timely unless petitioner ...