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Warner v. Swarthoust

October 6, 2010

DOUGLAS WARNER, PETITIONER,
v.
SWARTHOUST, WARDEN 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. 12]

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

BACKGROUND*fn1

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation following his conviction of first degree murder and numerous sentencing enhancements. On August 8, 2006, Petitioner was sentenced to an indeterminate state prison term of fifty years to life.

On September 12, 2007, the California Court of Appeal, Fifth Appellate District, struck the firearm use enhancement, remanded the matter back to the trial court to issue an amended abstract of judgment, and otherwise affirmed the judgment.

Both the State and Petitioner filed petitions for review in the California Supreme Court. On November 28, 2007, the California Supreme Court granted the State's petition for review and deferred further action in the matter until People v. Gonzalez, S149848, was decided. On July 16, 2008, the California Supreme Court transferred the matter back to the California Court of Appeal for reconsideration in light of People v. Gonzalez, 43 Cal.4th 1118 (2008). On September 3, 2008, the California Court of Appeal affirmed the August 8, 2006, judgment of the trial court in its entirety. Petitioner did not review in the California Supreme Court.

Petitioner filed four pro se state post-conviction collateral petitions for writs of habeas corpus.*fn2 The first petition was filed on December 23, 2009, in the Stanislaus County Superior Court. The petition was denied the next day on December 29, 2009.

On December 29, 2010, Petitioner filed a second petition for writ of habeas corpus in the Stanislaus County Superior Court, which was denied on January 14, 2010.

The third petition for writ of habeas corpus was filed in the California Court of Appeal, Fifth Appellate District on January 26, 2010. The petition was denied on March 11, 2010.

On March 16, 2010, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District on March 16, 2010. The petition was denied on March 25, 2010.

Petitioner filed a previous petition for writ of habeas corpus in the Sacramento division of this Court on December 23, 2009, and the case was subsequently transferred to the Fresno division on January 15, 2010, in case number 1:10-cv-00086-DLB (HC). The action was dismissed without prejudice on January 26, 2010, for failure to exhaust the state court remedies. On February 22, 2010, the Court denied Petitioner's motion for reconsideration.

Petitioner filed the instant petition for writ of habeas corpus on March 5, 2010. Respondent filed a motion to dismiss on July 2, 2010. ...


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