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Cross v. Corona

March 1, 2010

GEORGE EUGENE CROSS, PETITIONER,
v.
MICHAEL CORONA, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a county jail inmate proceeding pro se with a petition for a writ of habeas corpus challenging his Sacramento County convictions for a variety of pimping and forcible sexual offenses. Respondent has filed a motion to dismiss. Petitioner has filed a motion for an evidentiary hearing on the question of equitable tolling, a request for the appointment of counsel, a request to file an amended traverse, a request for an investigation of the Orange County Jail, where he is currently being held pending trial on other charges, and an amended petition for a writ of habeas corpus.

I. Motion For The Appointment Of Counsel (Docket No. 35)

Petitioner has requested the appointment of counsel. There is no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case "if the interests of justice so require." See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the interests of justice would be served by the appointment of counsel at the present time.

II. Request For An Investigation (Docket No. 34)

Although it is difficult to discern exactly what petitioner seeks in this filing, he alleges he was denied access to an ink pen, even though he needs one to fill out a form MC-275 "to answer the Ninth Circuit Court"; that he is unable to pay for transcripts; and that he needs funds to pay for mailings, apparently concerning problems at the Orange County Jail. He asks the court to investigate why he is "receiving such unconstitutional treatment of which forced me out of being pro-per" in the Orange County case, particularly because the Orange County Superior Court refused to conduct a "Marsden"*fn1 hearing concerning his investigator.

As he has done before, petitioner asks this court to intervene in his state court proceedings. The court declines to do so. Younger v. Harris, 401 U.S. 37, 43, 54 (1971). In addition, petitioner's complaints about his access to a pen have nothing to do with this case: there is currently nothing due and this court will accept filings written in pencil.

III. Motion To File An Amended Traverse (Docket No. 36)

Once again, it is difficult to discern the gravamen of petitioner's request: in the amended traverse included with this request, petitioner takes issue with respondent's alleged "introduction of false evidence," apparently concerning petitioner's claim of actual innocence. To the extent the court can understand this document, it will treat it as a reply to respondent's opposition to the motion for an evidentiary hearing.

IV. The Motion To Dismiss And Request For An Evidentiary Hearing (Docket Nos. 16 & 27)

A. Background

On December 5, 2003, petitioner was sentenced to an indeterminate term of fifty- five years to life and a determinate term of twenty-two years, eight months in Sacramento County Superior Court. Lodged Document (Lodg. Doc.) 1.

The Court of Appeal rejected his claims of error in a decision filed August 26, 2005, and the California Supreme Court denied review on November 16, 2005. Lodg. Docs. 2 & 4.

On December 28, 2005, petitioner filed a petition for a writ of habeas corpus in Sacramento County Superior Court; that court denied the petition on January 18, 2006. Lodg. Docs. 5 & 6.

On February 3, 2006, petitioner submitted a document the Superior Court construed as a motion for reconsideration.*fn2 The court denied the motion on February 22, 2006. The court observed that to the extent petitioner sought to add new claims, he would have to secure leave to file a supplemental petition, which the court declined to grant. To the extent the motion was one for reconsideration of the earlier denial, the court denied it because petitioner had not presented "specific reasons why the court should reconsider its initial denial." Lodg. Doc. 7.

On February 21, 2006, petitioner filed a document he called "habeas corpus 2d Amendment." The Superior Court rejected this on March 1, 2006, reminding petitioner that it had previously informed him it would not accept any amendments to the writ petition, especially after the denial of the motion for reconsideration. Lodg. Doc. 8.

On February 28, 2006, the Superior Court denied the motion to compel documents that petitioner had filed on January 13, 2006, observing it had no jurisdiction to consider the request because the habeas petition had been denied. Lodg. Doc. 11.

On March 2, 2006, petitioner attempted to amend his Superior Court habeas petition, an attempt the court rebuffed on March 13, 2006. The court informed petitioner that "the method of review of the denial of this petition is by filing a new petition with the Third District Court of Appeal." Lodg. Doc. 9.

On April 20, 2006, the Superior Court sent a letter to petitioner informing him that his writ had been denied on January 18, 2006, and the motion for reconsideration had been denied on February 23, 2006. Lodg. Doc. 10.

On April 27, 2006, the Court of Appeal received a letter from petitioner, notifying the court that he mailed a petition for a writ of habeas corpus on April 24, 2006. Lodg. Doc. 12. The writ itself was filed in the Court of Appeal on May 12, 2006. Lodg. Doc. 13. This writ was denied on September 21, 2006. Lodg. Doc. 14. On October 31, 2006, the Court of Appeal returned a motion for reconsideration to petitioner, noting that the case was final. Lodg. Doc. 16.

On January 5, 2007, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. Lodg. Doc. 17. That court denied the petition on June 20, 2007. Lodg. Doc. 18.

On October 21, 2008, petitioner filed a petition for a writ of habeas corpus in the Ninth Circuit. Cross v. Corona, Docket No. 08-74398 (9th Cir.). On January 12, 2009, that court transferred the writ to the Central District. The Central District transferred the case to this court on February 12, 2009.

B. The Statute Of Limitations

The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a statute of limitations for filing a habeas petition:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...


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