Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

RAMIREZ v. LAMARQUE

September 28, 2005.

CUZTODIO RAMIREZ, Petitioner,
v.
A. LAMARQUE, Warden, Respondent.



The opinion of the court was delivered by: DANA SABRAW, District Judge

ORDER: (1) ADOPTING THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE; AND (2) DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Cuztodio Ramirez, a state prisoner proceeding pro se, petitions this Court for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his 1995 conviction and sentence in San Diego Superior Court. The Honorable Louisa S. Porter, United States Magistrate Judge, has issued a Report and Recommendation ("R&R") pursuant to 28 U.S.C. § 635(b)(1) and Civ.L.R. HC.2, recommending that the Court grant Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus. The Court has considered all of the relevant pleadings, the applicable law and the R&R. For the following reasons, the Court ADOPTS Judge Porter's recommendation and GRANTS WITH PREJUDICE Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus. The Petition for Writ of Habeas Corpus is DENIED in its entirety. I.

FACTUAL AND PROCEDURAL BACKGROUND

  The Court incorporates by reference the factual and procedural summary as contained in the opinion of the California Court of Appeal. People v. Ramirez, No. D023310, slip op. (4th Dist., Div. 1, August 6, 1996). The factual findings of the State appellate court are entitled to a statutory presumption of correctness. See 28 U.S.C. § 2254(e)(1); Parke v. Raley, 506 U.S. 20, 25-26 (1992). Additionally, the Court adopts by reference the factual summary as contained in Judge Porter's R&R.

  A. State Court Proceedings

  On February 15, 1995, a jury found Petitioner guilty of selling a controlled substance in violation of Health & Safety Code § 11352(a) and possession of a controlled substance in violation of Health & Safety Code § 11350(a). The jury also concluded that Petitioner suffered three prison priors within the meaning of Penal Code § 667.5, and three serious or violent felony priors within the meaning of Penal Code § 667(b) — (i) ("strike priors"). The Superior Court sentenced Petitioner to a term of twenty-five years to life in prison pursuant to California's Three Strikes law.

  Petitioner then filed a direct appeal in the California Court of Appeal, asserting that the trial court erred: (1) in admitting "other crimes" evidence pursuant to Evidence Code § 1101(b); and (2) in ruling that it did not have the discretion to strike any of the serious felony prior convictions. On August 6, 1996, the California Court of Appeal affirmed Petitioner's conviction, but remanded the case for resentencing. Petitioner did not petition for review of the affirmance of the convictions. At resentencing on November 7, 1996, the trial court dismissed the possession charge and struck the prison priors. However, the court declined to dismiss the strike priors. Petitioner was resentenced to a term of twenty-five years to life in prison. Petitioner did not appeal his resentencing.

  After Petitioner was resentenced to a term of twenty-five years to life in prison, he filed numerous petitions for writ of habeas corpus in the California Superior Court, the California Court of Appeal and the California Supreme Court, challenging his 1995 conviction and sentence on various grounds. All of the Petitions were denied by the California courts. B. Federal Court Proceedings

  On July 6, 2004, Petitioner filed the current Petition for Writ of Habeas Corpus, asserting that he: (1) received ineffective assistance of trial counsel; (2) was denied confrontation and cross-examination of his accuser without waiver; (3) received ineffective assistance of appellate counsel; and (4) was denied a fundamentally fair appeal and adequate and effective appellate review related to the merits of the appeal.

  On September 27, 2004, Respondent moved to dismiss the Petition, arguing that the Petition is statutorily barred by the one year limitations period imposed by the Antiterrorism and Effective Death Penalty Act; and that if not time-barred, the Petition should be dismissed for being conclusory, procedurally defaulted, and failing to state a claim for relief. Petitioner filed an Opposition to Respondent's Motion to Dismiss on November 15, 2004.

  The Magistrate Judge issued the R&R on May 3, 2005, recommending that the Court grant Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus with prejudice on grounds that the Petition is barred by the one-year statute of limitations imposed on such petitions.*fn1 On May 31, 2005, Petitioner filed his objection to the R&R. Respondent filed a Reply to Petitioner's objections on June 10, 2005.

  II.

  REVIEW OF R&R: LEGAL STANDARD

  The duty of the district judge regarding the review of an R&R is set forth in Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1). Where objections are filed, Section 636(b)(1) directs the district judge to review de novo "those portions" of the R&R to which objections have been made. See Hunt v. Pliler, 384 F.3d 1118, 1124-25 (9th Cir. 2004). The district judge may then accept, reject, or modify, in whole or in part, the magistrate judge's findings and recommendations. 28 U.S.C. § 636(b)(1). However, as to those portions of the R&R to which no objections have been made, the district judge may assume the correctness of the magistrate judge's findings and recommendations. See U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) ("the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.") (emphasis in original). See also Thomas v. Arn, 474 U.S. 140, 149-52 (1985) ("It does not appear that Congress intended to require district court review of a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.