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Nigro v. Evans

December 18, 2008

PASQUALE NIGRO, PETITIONER,
v.
M. EVANS, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Pasquale Nigro is a state prisoner, proceeding with counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner attacks his May 30, 2001 plea of no contest in Solano County Superior Court, Case No. VC27822, to 21 counts of various sex offenses resulting in a sentence of 96-years in prison.

II. ISSUES

Petitioner raises the following claims:

A. Violation of due process by imposing a sentence beyond the statutory minimum;

B. Violation of due process and right to a jury trial for refusal to allow withdrawal of guilty plea;

C. Violation of ex post facto;

D. Violation of due process by sentencing petitioner to a term beyond the maximum allowed by law in 1986;

E. Violation of due process and right to speedy trial by delaying arrest;

F. Denial of right to speedy trial and due process by failing to arrest petitioner prior to September 1999;

G. Ineffective assistance of counsel for failing to inform petitioner of his trial date; and

H. Violation of ex post facto clause because the applicable statutes of limitations expired.

Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be denied.

III. FACTUAL AND PROCEDURAL BACKGROUND

The information contained 21 counts of sexual offenses. Counts 1-18 alleged offenses committed between January 1, 1985, and June 23, 1986, against M1 and M2. Counts 19-21 alleged offenses committed between June 20, 1986, and June 21, 1986. M1 was the victim of the first two counts, lewd act upon a child under 14 years. (Pen.Code, § 288, subd. (a)). She was 13 years old when the crimes were reported in June 1986. M2 was the victim of the remaining counts and was 17 years old when the crimes were reported.

Appellant entered a plea of nolo contendere to all 21 counts. The factual basis of his plea was his stipulation to each count. His plea acknowledged that he understood that the maximum punishment that could be imposed based on his plea was 101 years.

Appellant was sentenced to a total determinate term of 96 years. Fully consecutive sentences were imposed on 12 counts, pursuant to section 667.6, subdivision (d): Counts 3, 6, 9, 12, 15, 19 (rape; § 261, subd. (a)(2)).

Counts 4, 7, 10 (forcible genital penetration by a foreign object; § 289, subd. (a)).

Counts 16, 17, 18 (forcible oral copulation; § 288a, subd. (c)). Pursuant to section 654, the court stayed imposition of sentence on counts 1 and 2 (lewd act upon a child), counts 5, 8, 11, 14, and 21 (sexual battery, § 243.4), and counts 13 and 20 (genital penetration).

Answer, Ex. F. at 1-2. On February 19, 2002, the trial court sentenced petitioner to 96 years in prison. Clerk's Transcripts ("CT") at 486-87, 495.

On January 20, 2003 the California Court of Appeal affirmed the judgment. Answer, Ex. F. Petitioner filed a petition for review in the California Supreme Court on March 3, 2003. Answer, Ex. G. The California Supreme Court denied that petition on April 9, 2003. Ex. H. Petitioner and Respondent agree that:

On or about February 10, 2003 petitioner filed a petition for writ of habeas corpus in the California Court of Appeals, First Appellate District. Petitioner raised the following grounds:

A. The trial court denied him due process resulting in an unlawful plea and 96 year sentence.

B. Trial counsel rendered ineffective assistance resulting in an unlawful plea agreement and a 96-year sentence.

On February 11, 2003, the Court of Appeals denied [petitioner's] petition. (Case No. FCR206454.)

On or about March 5, 2003, [petitioner] filed a petition for writ of habeas corpus in the Solano Superior court raising the following issue: On December 24, 2001, petitioner timely filed a Notice of Appeal and requested a Certificate of Probable Cause to challenge the validity of the plea.

On April 22, 2003, the trial court denied [petitioner'] petition. (Case No. FCR206454.)

On or about July 2, 2003, [petitioner] filed a petition for writ of habeas corpus with the Court of Appeals raising the following issue: Petitioner was denied the opportunity to appeal his case through no fault of his own. Petitioner asked the court to deem timely, the December 24, 2001, Notice of Appeal and request for a Certificate of Probable Cause to challenge the validity of the plea. On July 8, 2003, the California Court of Appeals denied [petitioner's] petition. (Case No. A103108.)

On or about July 22, 2003 [petitioner] filed a petition for Review with the California State Supreme Court. [Answer, Ex. I.] That petition for review raised the following issues:

A. The trial court erred by refusing to deem his Certificate of Probable Case Timely filed.

B. Ineffective Assistance of Trial Counsel.

On August 27, 2003, the California Supreme Court denied [petitioner's] petition. (Case No. S17729.) [Answer, Ex. J.]

On or about August 17, 2003, petitioner filed a petition for writ of habeas corpus with the Solano County Superior Court. [Petitioner] raised the issue that his conviction and sentence violated ex post facto laws.

On September 26, 2003, the Superior Court denied [petitioner's] petition. (Case No. FCR2101.)

On or about October 20, 2003, petitioner filed a petition for writ of habeas corpus with the Solano County Superior Court raised (sic) the grounds that the trial court denied him his right to a speedy trial and his conviction and sentence violated the ex post facto laws.

On January 14, 200[4], the Superior Court denied [petitioner's] petition. (Case No. FCR204270.)

On or about December 8, 2003, [petitioner] filed a petition for writ of habeas corpus in the California Court of Appeals, First Appellate District. In his petition, ...


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