1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 DARREN MICHAEL BIRKS, JR., Case No. 5:21-cv-00399-AB (AFM)

12 Petitioner, ORDER ACCEPTING FINDINGS v. 13 AND RECOMMENDATIONS OF 14 JOSIE GASTELLO, Warden, UNITED STATES MAGISTRATE JUDGE 15 Respondent. 16 17 Pursuant to

, the Court has reviewed the Petition, records on 18 file and the Report and Recommendation (“Report”) of United States Magistrate 19 Judge. Further, the Court has engaged in a de novo review of those portions of the 20 Report to which objections have been made. Petitioner’s objections are overruled. 21 With the exception of the following, Petitioner’s objections do not warrant discussion 22 as they are properly addressed in the Report. 23 Petitioner objects to the Report’s determination that the statute of limitation 24 began to run when his conviction became final. Instead, Petitioner contends that he 25 is entitled to delayed accrual under

(d)(1)(D), which provides that 26 the statute of limitation commences when a petitioner knows or through the exercise 27 of due diligence should discover the factual predicate of his claims. 28 The petition here raises two claims for relief: (1) Petitioner’s guilty plea was 1 not voluntary or knowing because he was “deceived into accepting a gang 2 enhancement allegation that is neither supported by law or fact” and (2) Petitioner’s 3 plea is fundamentally unfair because it is based upon a misapplication California’s 4 gang enhancement provision. (ECF 1 at 12-14.) According to Petitioner, he 5 discovered the factual predicate for his claims on April 23, 2020, the date on which 6 he was shown a copy of People v. Le,

(2015), and “discovered” that 7 his sentence was contrary to People v. Rodriguez,

(2009). (ECF 12 8 at 1.) 9 Under section 2244(d)(1)(D), the limitation period commences when 10 petitioner knows or through the exercise of due diligence should discover the factual 11 predicate of his claims, not when petitioner learns the legal significance of those 12 facts. See Ford v. Gonzalez,

(9th Cir. 2012); Hasan v. Galaza, 13

, 1154 n.3 (9th Cir. 2001). Thus, Petitioner’s “discovery” of judicial 14 decisions does not constitute a “factual predicate” justifying delayed accrual of the 15 limitation period. See Shannon v. Newland,

(9th Cir. 2005) 16 (intervening state court decision establishing abstract proposition of law arguably 17 helpful to petitioner does not constitute a “factual predicate” under section 18 2244(d)(1)(D)); Arroyo v. Jaime,

, at *3 (C.D. Cal. Nov. 24, 2020) 19 (a favorable state court decision – no matter how recent – does not constitute a factual 20 predicate for purposes of section 2244(d)(1)(D)); Singer v. Dir. of Corr.,

1444479, at *3 (C.D. Cal. Mar. 4, 2010) (the decision in Cunningham v. California, 22

(2007) does not constitute a “factual predicate” within the meaning of 23

(d)(1)(D)), report and recommendation adopted,

24 (C.D. Cal. Apr. 2, 2010). 1 25 26

27 1 The Court notes that the cases upon which Petitioner relies were decided in 2009 (Rodriguez) and 2015 (Le). Petitioner has not demonstrated that through the exercise of due diligence he could not 28 have discovered these legal authorities long before April 23, 2020. 1 Petitioner also argues that “the Boykin’ claim also came to light on or about 2 || 10/17/2020.” (ECF 12 at 2.) As discussed in the Report, Petitioner entered a guilty 3 || plea on February 4, 2015, and the state court imposed the agreed-upon sentence on 4 || February 11, 2015. Petitioner’s conclusory assertion fails to demonstrate that 5 || Petitioner could not discover the factual predicate for his claim that his guilty plea 6 || was invalid until more than five year after he was sentenced. Accordingly, 7 || Petitioner’s contention that he 1s entitled to a delayed accrual date under 28 U.S.C. 8 |) § 2244(d)(1)(D) lacks merit. 9 For these reasons, the Court accepts the findings and recommendations of the 10 || Magistrate Judge. 11 IT THEREFORE IS ORDERED that (1) the Report and Recommendation of 12 || the Magistrate Judge is accepted and adopted; and (2) Judgment shall be entered 13 |) dismissing the action with prejudice. 14 15 | DATED: June 15, 2021

17 re UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 || ————— 2 Boykin vy. Alabama,

(1969) (Constitution requires that guilty plea be 28 |! knowing, intelligent, and voluntary).