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Pena v. Martel

August 19, 2009

JERRY PENA, PETITIONER,
v.
MICHAEL MARTEL, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondents' motion to dismiss (Doc. 16) the petition as untimely and unexhausted.

I. BACKGROUND

Petitioner was convicted of kidnapping for rape, as well as false imprisonment. He was sentenced to an indeterminate prison term of 35 years to life on July 5, 2005. The Court of Appeal reversed the false imprisonment charge on July 11, 2006, but in all other respects affirmed the conviction and sentence. Petitioner did not seek direct review in the California Supreme Court. Petitioner then filed three state court post-conviction actions as follows:

First Petition Sacramento County Superior Court

Filed June 14, 2007

Denied July 25, 2007

Second Petition California Court of Appeal

Filed September 17, 2007

Denied September 28, 2007

Third Petition California Supreme Court

Filed December 27, 2007

Denied June 11, 2008

The instant federal petition was filed on ...


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