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Moore v. Felker

January 30, 2009

JOHNNY ANDREW MOORE, PETITIONER,
v.
T. FELKER, WARDEN, ET AL., RESPONDENTS.



ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This action proceeds on the July 11, 2007, petition. Respondents move to dismiss on the ground that the petition is untimely. After completion of the briefing on the motion to dismiss, petitioner filed a request for leave to file an amended petition that would add two previously unexhausted claims.*fn1 For the reasons explained below, the motion to amend is unnecessary and the motion to dismiss, even in light of petitioner's purported amendment, must be granted.

I. Procedural History

On July 21, 1998, in the Sacramento County Superior Court, petitioner pleaded guilty to thirteen counts of robbery with special allegations of personal use of a firearm as to twelve of the thirteen counts. Pet. at 2; Resp.'s Mot. to Dism., Docs. Lodg. in Supp. Thereof ("Lodg. Doc.") 2 at 6-7. Petitioner also admitted a "strike prior" and was sentenced to a total state prison term of thirty years.*fn2 Pet. at 2; Lodg. Doc. 2 at 4-5. Petitioner did not challenge his conviction on direct appeal. Pet. at 2. However, petitioner filed the following post-conviction collateral challenges in the state courts:

(1) July 7, 2006: habeas corpus petition filed in the Sacramento County Superior Court, and denied on August 8, 2006.*fn3 Lodg. Docs. 1, 2. In addressing petitioner's claims, the court found that the "strike prior," based on petitioner's prior conviction for second degree burglary, could not constitute a "strike" because second degree burglary is not a serious or violent felony.

However, the court found that petitioner was estopped from raising such a claim on habeas corpus, explaining that:

For whatever reason petitioner chose to accept the plea bargain, [and] he should not be allowed to come into this court, eight years later, and attempt to undo his sentence and convictions on this ground; that is trifling with the courts, in an attempt to obtain an even better sentence than the 30-year sentence he was able to receive for committing thirteen robberies, all but one of which was with personal gun use.

Lodg. Doc. 2 at 6.

(2) December 6, 2006: habeas corpus petition filed in the California Supreme Court, and denied on June 27, 2007. Lodg. Docs. 3, 4.

(3) December 15, 2006: habeas corpus petition filed in the Sacramento County Superior Court, and denied on December 28, 2006. Lodg. Docs. 5, 6.

(4) December 27, 2006: habeas corpus petition filed in the Court of Appeal, Third Appellate District, and denied on January 25, 2007. Lodg. Docs. 7, 8.

(5) September 18, 2007: habeas corpus petition filed in the California Supreme Court, and denied on March 12, 2008. Lodg. Doc. 9; Pet.'s Mot. to Supp., Docket No. 19, at 3.

(6) November 8, 2007, habeas corpus petition filed in the California Supreme Court, and denied on March 12, 2008. Lodg. Doc. 10; Pet.'s Mot. to Supp., at 4.

Petitioner filed the instant petition on July 11, 2007. He claims that his prior conviction for second degree burglary could not lawfully be the basis for a "strike prior" to enhance his sentence, that his trial counsel had been ineffective in not determining that the second degree burglary could not constitute a "strike prior," and that the trial court erred in denying his motion for new counsel pursuant to People v. Marsden, 2 Cal.3d 118 (1970). Petitioner also contends that the trial court should have resentenced petitioner to a term of 20 years when on August 8, 2006, it determined that petitioner's prior conviction could not constitute a "strike prior."

Respondents contend that the petition was filed outside the one-year limitation period prescribed by ...


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