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Hurtado v. Adams

March 9, 2009

RICHARD ANTHONY HURTADO, PETITIONER,
v.
DERRAL G. ADAMS, WARDEN RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS

[Doc. 15]

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

BACKGROUND

On July 19, 2004, Petitioner was convicted of child endangerment, spousal abuse, and making a criminal threat. In a separate proceeding, the court found true the allegations that Petitioner suffered a prior felony conviction within the meaning of California Penal Code section 667(a), two prior felony convictions within the meaning of the three strikes law, and had served one prior prison term. Petitioner was sentenced to an indeterminate state prison term of 31 years to life. (Lodged Doc. Nos. 1-2.)

On May 19, 2006, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. (Lodged Doc. No. 2.) Petitioner then sought review in the California Supreme Court which was denied on July 26, 2006.*fn2 (Lodged Doc. Nos. 3-4.)

Petitioner subsequently filed three state post-conviction collateral petitions.*fn3 The first petition was filed on September 30, 2007, in the Tulare County Superior Court. (Lodged Doc. No. 5.) The petition was denied on October 11, 2007, with citations to In re Clark, 5 Cal.4th 750, 765 (1993) and In re Robbins, 18 Cal.4th 770, 780 (1998). (Lodged Doc. No. 6.)

The second petition was filed in the California Court of Appeal, Fifth Appellate District on October, 2007, and was denied on November 1, 2007. (Lodged Doc. Nos. 7-8.)

The third and final petition was filed in the California Supreme Court on March 1, 2008, and denied on September 10, 2008. (Lodged Doc. Nos. 9-10.)

Petitioner filed the instant federal petition for writ of habeas corpus on September 16, 2008. (Court Doc. 1.)

Respondent filed the instant motion to dismiss on January 26, 2009. (Court Doc. 15.) Petitioner did not file an opposition.

DISCUSSION

A. Procedural Grounds for Motion to Dismiss

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court ...


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