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Righetti v. Hedgpeth

April 14, 2010

GERALD RIGHETTI, PETITIONER,
v.
A. HEDGPETH, RESPONDENT.



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

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS THE PETITION, DIRECTING CLERK OF COURT TO DISMISS ACTION WITH PREJUDICE, DIRECTING CLERK OF COURT TO ENTER JUDGMENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

[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. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge.

BACKGROUND

Petitioner pled no contest to attempted murder and admitted premeditation and firearm use enhancements. (Lodged Doc. No. 1.) On November 13, 1996, Petitioner was sentenced to an indeterminate state prison term of life with the possibility of parole for the attempted murder and a determinate term of ten years for the firearm enhancement. (Lodged Doc. No. 2.)

Petitioner filed a notice of appeal. On January 15, 1998, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. (Lodged Doc. No. 1.) Petitioner did not seek review by the California Supreme Court.

Petitioner did file four pro se post-conviction collateral petitions. The first petition was filed on March 15, 2007, in the Kings County Superior Court. It was denied with citation to In re Clark, 5 Cal.4th 750 (1993) on May 1, 2007. (Lodged Doc. No. 3.)

The second petition was filed on May 29, 2007, in the Kings County Superior Court. (Lodged Doc. No. 5.) The petition was denied on June 12, 2007. (Lodged Doc. No. 6.)

The third petition was filed in the California Court of Appeal, Fifth Appellate District on July 3, 2007. (Lodged Doc. No. 7.) On February 1, 2008, the petition was denied with citations to In re Robbins, 18 Cal.4th 770, 778 (1998) and In re Gallegos, 18 Cal.4th 825, 832-833 (1988). (Lodged Doc. No. 8.)

The fourth petition was filed in the California Supreme Court on March 13, 2008. (Lodged Doc. No. 9.) On September 10, 2008, the petition was denied with citation to In re Robbins, 18 Cal.4th at 780. (Lodged Doc. No. 10.)

Petitioner filed the instant federal petition on September 15, 2009. (Court Doc. 1.) Respondent filed the instant motion to dismiss on November 20, 2009. (Court Doc. 12.) Petitioner filed an opposition on February 18, 2010. (Court Doc. 17.) Respondent filed a reply on March 29, 2010. (Court Doc. 19.)

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 ...


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