United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
PYM United States Magistrate Judge
December 7, 2018, petitioner constructively filed a Petition
for Writ of Habeas Corpus by a Person in State Custody
(“Petition”). Petitioner seeks to challenge his 2016
convictions for assault and battery on a peace officer in Los
Angeles County Superior Court.
February 28, 2019, respondent filed a Motion to Dismiss the
Petition, asserting the claims are barred by the one-year
statute of limitations set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2244(d)(1). For the reasons discussed below,
the court finds the Petition is untimely. As such, the court
grants the Motion to Dismiss.
8, 2016, petitioner pled nolo contendre to assault upon a
peace officer (Cal. Penal Code § 245(c)) and battery
against a peace officer (Cal. Penal Code § 243(c)(2)),
and admitted he inflicted great bodily injury in the
commission of these offenses (Cal. Penal Code §
12022.7(a)). LD 1 at 30-31; LD 4 at 3-4; LD 7. Petitioner
also admitted to three prior convictions that qualified as
serious and/or violent felonies and strikes under
California’s Three Strikes Law. See LD 1 at
31; LD 4 at 4-5. At the September 22, 2016 sentencing
hearing, the trial court struck two of the three strikes and
sentenced petitioner to 21 years in prison. LD 1 at 33-34; LD
did not appeal his conviction or sentence. Petition at 2.
Petitioner apparently tried to file a notice of appeal a few
weeks after his sentencing, but it was not filed because
there was no certificate of probable cause. LD 1 at 35.
Petitioner then requested a certificate of probable cause,
but the Superior Court denied that request on November 30,
constructively filed a habeas petition in the Los Angeles
County Superior Court on July 5, 2017. LD 8. Petitioner
presented two sentencing error claims: (1) petitioner’s
sentence was illegally enhanced; and (2) petitioner was given
multiple sentences for a single criminal act. Id. On
July 31, 2017, the Superior Court denied the habeas petition.
LD 1 at 36-37.
constructively filed a Motion for Reconsideration in the
Superior Court on September 21, 2017, but attached a habeas
petition signed on July 6, 2017. See LD 9. The July
6, 2017 habeas petition raised a different second sentencing
error claim – that petitioner’s sentence was
disproportionate to other sentences for the same conduct
– than the one constructively filed on July 5, 2017.
See id. at 7. Construing the motion for
reconsideration as a new habeas petition, the Superior Court
denied it on October 4, 2017. See LD 10.
December 7, 2017, petitioner filed a notice of appeal. LD 1
at 39. The Superior Court denied the appeal as untimely.
January 31, 2018, petitioner constructively filed a habeas
petition in the California Court of Appeal. LD at 11.
Petitioner argued: (1) he was unable to filed a timely notice
of appeal due to mental illness; and (2) he received
ineffective assistance of counsel for failure to investigate.
Id. The Court of Appeal summarily denied the habeas
petition on March 14, 2018. LD 12.
constructively filed a habeas petition in the California
Supreme Court on May 23, 2018. LD 13. Petitioner raised the
same two grounds presented to the Court of Appeal, and also
argued he received an illegal sentence. See id. at
3-12. The California Supreme Court summarily denied the
habeas petition on September 26, 2018. LD 14.
constructively filed the instant federal Petition on December
The Petition Is Time-Barred Under AEDPA’s One-Year