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Aguirre v. Hartley

September 5, 2008

REFUGIO B. AGUIRRE, PETITIONER,
v.
JAMES D. HARTLEY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1

RELEVANT BACKGROUND

On March 24, 2006, in the Kings County Superior Court, Petitioner pled guilty to possession of methamphetamine for sale (California Health & Safety Code § 11378). Petitioner also admitted having suffered prior convictions pursuant to California Health and Safety Code § 11370.2(c), and having served a prior prison term. Cal. Penal Code § 667.5(b).

On May 2, 2006, Petitioner was sentenced to state prison for a term of twelve years computed as follows: the mid-term of two years for his uncontested violation of California Health and Safety Code § 11378, a nine-year enhancement for prior convictions pursuant to California Health and Safety Code § 11370.2(c), and a one-year enhancement for having served a prior prison term pursuant to California Penal Code § 667.5(b). (Lodged Doc. No. 1.)

Petitioner did not file a direct appeal from the judgment to the California Court of Appeal.

However, on April 23, 2007, Petitioner filed a petition for writ of habeas corpus in the Kings County Superior Court, which was denied on June 11, 2007. (Lodged Doc. Nos. 3, 4.)

On August 17, 2007, Petitioner filed a petition for writ of habeas corpus with the California Court of Appeal, Fifth Appellate District, which was denied on August 23, 2007. (Lodged Doc. Nos. 5, 6.)

On September 4, 2007, Petitioner filed a petition for review in the California Supreme Court, which was likewise denied on October 10, 2007. (Lodged Doc. Nos. 7, 8.)

Petitioner filed the instant federal petition for writ of habeas corpus on November 26, 2007. (Court Doc. 1.) Respondent filed an answer to the petition on April 3, 2008, and Petitioner filed a traverse on April 23, 2008. (Court Docs. 7, 10.)

STATEMENT OF FACTS

The factual circumstances underlying Petitioner's commitment offense are not contained in the record as he plead no contest and are not relevant to the disposition of the instant petition.

DISCUSSION

A. ...


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