FINDINGS & RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate 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. Pending before the court is respondent's motion to dismiss on the grounds that the petition is barred by the statute of limitations and for failing to raise a federal question. (ECF No. 10.) For the reasons stated herein, the undersigned recommends that respondent's motion be granted.

II. Background

In 2014, petitioner was convicted of voluntary manslaughter (Cal. Penal Code § 192(a)), felon in possession of a firearm (Cal. Penal Code § 2900(a)(1)), possession of a short barreled shotgun (Cal. Penal Code § 33215), and two counts of assault with a deadly weapon (Cal. Penal Code § 245(a)(1)). (Respondent's Lodged Document 1.)

Petitioner was also convicted of two sentencing enhancements pursuant to California Penal Code §§ 12022.5 and 12022.55. (Id.) The sentencing enhancements were imposed for petitioner's conviction for voluntary manslaughter. (Id.) For these enhancements, petitioner was sentenced to two, consecutive ten year sentences. (Id.)

Section 12022.5 allows a ten year enhancement for use of a firearm in the commission of a felony. Section 12022.55 provides,

Cal. Penal Code § 12022.55.

This action proceeds on the original petition filed June 29, 2017.1 Petitioner argues that the imposition of the sentencing enhancements for the same offense violates state law and the Double Jeopardy Clause. In support of this claim, petitioner cites California Penal Code § 1170.1(f) which provides,

Cal Penal Code § 1170.1(f).

In support of his claim, petitioner cites two cases: People v. Le, 205 Cal.App.4th 739 (2012), and People v. Rodriguez, 47 Cal.4th 501 (2009).2

III. Statute of Limitations

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,

28 U.S.C. § 2244 (d)(1).

Petitioner was sentenced on November 3, 2014. (Respondent's Lodged Document 1.) Petitioner did not appeal his conviction. Because he did not appeal, petitioner's conviction and sentence became final sixty days later on January 2, 2015. See Stancle v. Clay, 692 F.3d 948, 951 (9th Cir. 2012); Cal. R. Ct. 830.8(a) (notice of appeal must be filed within sixty days of judgment). The statute of limitations commenced the following day, i.e., January 3, 2015. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). The statute of limitations expired one year later, i.e., on January 3, 2016. The instant action, filed June 29, 2017, is not timely unless petitioner is entitled to statutory or equitable tolling.

Statutory Tolling

Title 28 U.S.C. § 2244(d)(2) provides that the time during which a properly filed application for state post-conviction or other collateral review, with respect to the pertinent judgment or claim is pending, shall not count toward any period of limitation. A state court habeas post-conviction process commenced beyond the expiration of the statute of limitations does not toll or revive the limitations period under section 2244(d)(1). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).

Petitioner filed his first state habeas petition on November 21, 2016. (Respondent's Lodged Document 2.) Because petitioner commenced the state court habeas post-conviction process beyond the expiration of the statute of limitations, he is not entitled to statutory tolling.

Equitable Tolling

A habeas petitioner is entitled to equitable tolling of the one-year statute of limitations only if he shows: (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstances stood in his way and prevented timely filing. See Holland v. Florida, 560 U.S. 631, 649 (2010). The diligence required for equitable tolling purposes is "reasonable diligence," not "maximum feasible diligence." See Holland v. Florida, 560 U.S. at 653; see also Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010). As to the extraordinary circumstances required, the Ninth Circuit has held that the circumstances alleged must make it impossible to file a petition on time, and that the extraordinary circumstances must be the cause of the petitioner's untimeliness. See Bills v. Clark, 628 F.3d at 1097, citing Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).

Petitioner makes no claim for equitable tolling. However, the undersigned observes that in the petition filed in the Superior Court, petitioner wrote that the petition concerned a "newly discovery of amendment new rule People v. Lee." (Respondent's Lodged Document 2.) In the petition filed in the California Court of Appeal, petitioner stated that "the information has just become known to me within the last 3 1/2 months." (Respondent's Lodged Document 4.) Petitioner did not identify the information that had just "become known to him."

The undersigned observes that petitioner has had knowledge of the two at-issue sentencing enhancements since the time of his plea. Based on the statement in the petition filed in the Superior Court, it appears that petitioner is claiming that he recently discovered the legal grounds of his claim challenging the enhancements. However, as indicated above, the two main California cases petitioner relies on were decided before his conviction. Petitioner's apparent ignorance of the law does not warrant equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).

Conclusion

For the reasons discussed above, the undersigned finds that the petition is barred by the statute of limitations. On this ground, respondent's motion to dismiss should be granted.

IV. Alleged Failure to Raise a Federal Question

Respondent argues that the petition should be dismissed because petitioner fails to raise a federal question.

It is well settled that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62 (1991). As such, "[a]bsent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). Such fundamental unfairness might include any sentence "based upon any proscribed federal grounds such as being cruel and unusual, racially or ethnically motivated, or enhanced by indigency . . ." Makal v. Arizona, 544 F.2d 1030, 1035 (9th Cir. 1976). A petitioner cannot, however, transform state law claims into federal ones simply by adding phrases like "due process" and "Fourteenth Amendment." See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (stating that a petitioner cannot "transform a state-law issue into a federal one merely by asserting a violation of due process.").

Respondent argues that petitioner raises a state law sentencing claim which is not cognizable in federal habeas. (ECF No. 10 at 4.) Respondent argues that the state courts determined that petitioner was not entitled to resentencing, citing the orders by the Superior Court, California Court of Appeal, and California Supreme Court dismissing petitioner's state habeas petitions. (Id.) Respondent argues that even if petitioner were to characterize his sentencing challenge as a violation of his constitutional rights, it would not be sufficient to render his claim cognizable on federal habeas review. (Id. at 5.)

The undersigned observes that respondent appears to have conceded to the California Court of Appeal that petitioner's sentence for the two enhancements violated state law. The California Court of Appeal ordered respondent to file a response to petitioner's petition. (ECF No. 1 at 34.) In response, respondent stated that he (respondent) did not contend that petitioner could be found in violation of § 12022.55 without also having violated § 12022.5. (Id. at 40.) Respondent stated that, "[t]he holding in Jose D. (accord, People v. Myers (1997) 59 Cal.App.4th 1523, 1533) supports the conclusion that imposing sentence for both a section 12022.5 enhancement and a 12022.55 enhancement creates an unauthorized sentence." (Id.) Respondent then stated, "[b]ut the determination of whether petitioner is entitled to relief does not end here." (Id.) Respondent then argued that petitioner's plea precluded him from challenging the imposition of the sentencing enhancements. (Id. at 40-41.)

The California Court of Appeal and California Supreme Court denied petitioner's habeas petitions without comment or citation. (Respondent's Lodged Documents 5, 7.) Based on respondent's apparent concession that the imposition of the sentencing enhancements violated state law, it is likely that the California Court of Appeal and California Supreme Court denied petitioner's state habeas petitions on the grounds that petitioner's plea waived the claim.

As discussed above, petitioner argues that his sentence enhancements for both § 12055.5 and § 12022.5 violate the Double Jeopardy Clause. Respondent does not address petitioner's double jeopardy claim raised in the instant petition. However, petitioner's double jeopardy claim is likely without merit. See Swanson v. Tampkins, 2017 WL 5495105 at *7 (S.D. Cal. 2017).3 Petitioner's claim may also be waived by his plea. See Tollett v. Henderson, 411 U.S. 258, 267 (1973) ("when a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." A petitioner may only attack the voluntary and intelligent nature of the guilty plea.)

Because petitioner's claim is barred by the statute of limitations, the undersigned need not address respondent's argument that petitioner fails to state a federal claim.

IV. Petitioner's Claim that the Pending Motion is not Timely

In the opposition, petitioner argues that the motion to dismiss should be denied because respondent's motion to dismiss was not timely filed. (ECF No. 12.) For the reasons stated below, the undersigned finds that respondent's motion to dismiss is timely.

On August 15, 2017, the undersigned ordered respondent to file a response to the petition within sixty days. (ECF No. 6.) Sixty days past August 15, 2017 was October 14, 2017. October 14, 2017 fell on a Saturday. Therefore, respondent's response was due Monday, October 16, 2017. See Fed. R. Civ. P. 6(a)(1)(C). The motion to dismiss, filed October 16, 2017, is timely.

Accordingly, IT IS HEREBY RECOMMENDED that respondent's motion to dismiss (ECF No. 10) be granted on the grounds that the petition is barred by the statute of limitations.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991).