Opinion
CASE NO. CV 13-4880 R (RZ)
06-10-2014
SAUL CERVANTES, Petitioner, v. M.D. BITER, WARDEN, Respondent.
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected.
In his objections, Petitioner contends that the stature of limitations should not bar his claim that his appellate counsel provided ineffective assistance by failing to challenge Petitioner's sentence on Eighth Amendment grounds. Presumably, Petitioner faults his counsel for failing to anticipate the California Supreme Court's decision in People v. Caballero, 55 Cal. 4th 262, 268, 145 Cal. Rptr. 3d 286, 282 P.3d 291 (2012). There, the California Supreme Court, relying on United States Supreme Court authority, held that "sentencing a juvenile offender for a non-homicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment." Furthermore, Caballero held that attempted willful, deliberate, and premeditated murder - the crime of which Petitioner was convicted - is a "non-homicide" offense. Id. at 267-68.
This claim is time-barred for the same reasons stated in the Report. Specifically, Petitioner was aware of all the relevant facts underlying his current challenge to his sentence when he was sentenced. He was likewise aware that his appellate counsel did not assert the current claim on appeal. That he did not appreciate the legal significance of those facts until a later point in time is of no consequence. See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (stating the statute of limitations begins to run when prisoner "knows" important facts, not when prisoner recognizes their legal significance).
Accordingly, the Court accepts the findings and recommendations of the Magistrate Judge.
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MANUEL L. REAL
UNITED STATES DISTRICT JUDGE