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Nichols v. Gonzalez

April 12, 2010

RAYMOND A. NICHOLS, PETITIONER,
v.
F. GONZALEZ, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS

[Doc. 9]

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

PROCEDURAL BACKGROUND

On May 19, 2004, Petitioner entered a plea of guilty to attempted murder. (Exhibit 1, Abstract of Judgment.) On July 19, 2004, Petitioner was sentenced to serve a determinate term of 13 years in prison. (Exhibit 2, Minute Order.) Petitioner was awarded 404 days of presentence credits, 374 days of time spent in local custody, and 30 days of good conduct credit. (Exhibit 1, at 2; Exhibit 2, at 4.)

On June 17, 2008, Petitioner filed a state petition for writ of habeas corpus in Ventura County Superior Court. (Exhibit 3, to Answer.) Petitioner alleged that on September 17, 2004, prison staff miscalculated his release date and failed to process his administrative appeals. (Id. at 3-5.) On August 8, 2008, the petition was denied for failure to exhaust administrative remedies. (Exhibit 4.)

On September 11, 2008, Petitioner filed a state petition for writ of habeas corpus in the California Court of Appeal, Second Appellate District. (Exhibit 5.) The petition was denied without prejudice for failure to exhaust the administrative remedies. (Exhibit 6.)

On November 18, 2008, Petitioner filed a state petition for writ of habeas corpus in the California Supreme Court, which was summarily denied. (Exhibits 7 & 8.)

Petitioner filed the instant federal petition for writ of habeas corpus on November 23, 2009. (Court Doc. 1.) Petitioner contends that he is being falsely imprisonment in violation of his due process rights, prison officials have filed to process his administrative grievances, and the Ventura County Superior Court failed to correct clerical errors in his abstract of judgment regarding the proper amount of pre-sentence credit.

On January 4, 2010, the Court dismissed Petitioner's false imprisonment and failure to process administrative grievance claims. (Court Doc. 4.)

On March 5, 2010, Respondent filed a motion to dismiss the petition as untimely under section 2244(d)(1). (Court Doc. 9.) Petitioner filed an opposition on April 1, 2010, and Respondent filed a reply on April 8, 2010. (Court Docs. 10, 11.)

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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