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Vargas v. Harrington

April 22, 2009

MATTHEW VARGAS, PETITIONER,
v.
KELLY HARRINGTON, 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. 12]

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

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation following his March 24, 1998, conviction of two counts of attempted murder and one count of first degree murder with a special circumstance that the murder was a "drive-by" shooting within the meaning of California Penal Code*fn2 section 190.2(21). Petitioner was sentenced to a determinate state prison term of 10 years based on the section 12022.5 violation for aggravated use of a gun, an indeterminate life term without the possibility of parole, and two consecutive indeterminate life terms with the possibility of parole. (Lodged Doc. Nos. 1-2.)

On September 30, 1999, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. (Lodged Doc. No. 2.) Petitioner filed a petition for review in the California Supreme Court which was denied on December 15, 1999. (Lodged Doc. Nos. 3-4.)

Thereafter, Petitioner filed four pro se state post-conviction collateral petitions.*fn3 The first petition for writ of error coram nobis was filed on July 11, 2006, in the California Court of Appeal, Fifth Appellate District. (Lodged Doc. No. 5.) The petition was denied on July 27, 2006. (Lodged Doc. No. 6.)

The second petition for writ of habeas corpus was filed in the California Court of Appeal, Fifth Appellate District on September 21, 2006. (Lodged Doc. No. 7.) The petition was denied on March 2, 2007. (Lodged Doc. No. 8.)

The third petition for writ of habeas corpus was filed in the Fresno County Superior Court on March 22, 2007. (Lodged Doc. No. 9.) The petition was denied on May 11, 2007, with citations to In re Robbins, 18 Cal.4th 770 (1998); and In re Clark, 5 Cal.4th 750, 774 (1993). (Lodged Doc. No. 10.)

The fourth and final petition for writ of habeas corpus was filed in the California Court of Appeal, Fifth Appellate District on March 27, 2008, which was denied on October 17, 2008. (Lodged Doc. Nos. 11-12.)

On September 10, 2007, Petitioner filed an appeal of the May 11, 2007, order denying the petition for writ of habeas corpus by the Fresno County Superior Court. (Lodged Doc. No. 13.) On April 21, 2008, the California Court of Appeal, Fifth Appellate District, dismissed the appeal. (Id.) On May 28, 2008, Petitioner filed a petition for review in the California Supreme Court, which was denied on July 9, 2008. (Lodged Doc. No. 14.)

Petitioner filed the instant federal petition for writ of habeas corpus December 10, 2008. (Court Doc. 1.) Respondent filed the instant motion to dismiss the petition on March 13, 2009. (Court Doc. 12.) Petitioner filed an opposition on April 8, 2009. (Court Doc. 15.) Respondent filed a reply on April 21, 2009. (Court Doc. 16.)

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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