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Kevin Ray Schrubb v. Matthew Cate

February 14, 2011

KEVIN RAY SCHRUBB, PETITIONER,
v.
MATTHEW CATE, RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction on charges of second degree robbery, conspiracy to commit second degree robbery, multiple counts of assault with a semiautomatic firearm, unlawful taking of a vehicle, and evading an officer with willful disregard. Petitioner was sentenced to an indeterminate state prison term of 304 years to life. See Lodgment (hereinafter "LD") 1. Petitioner appealed his sentence.

This matter is before the court on petitioner's request for stay and abeyance pending exhaustion of state court remedies as to unexhausted claims, and on respondent's motion to dismiss the petition as untimely and as a mixed petition containing unexhausted claims. Respondent opposes petitioner's request to stay these proceedings, and petitioner opposes respondent's motion to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

On November 4, 2004, petitioner was convicted of multiple counts stemming from a botched robbery of a Bank of America in Loomis, CA on March 17, 2003. LD 2 at 1-2. In August 2003, petitioner's Faretta motion was granted during trial and he represented himself through the remainder of his criminal proceedings. Id. at 2. Petitioner was subsequently sentenced to an indeterminate term of 304 years to life. See LD 1.

In his direct appeal, petitioner challenged the trial court's denial of his motion to suppress his confession because it was involuntary and his motion to dismiss the charges against him because of outrageous conduct by the staff at the jail in which he was held pending trial. LD 2 at 1. On December 8, 2005, the California Court of Appeal, Third Appellate District, affirmed the judgment after concluding that the trial court properly denied both motions. Id.

Petitioner appealed this decision to the California Supreme Court on January 10, 2006. LD 3. On February 22, 2006, the petition for review was summarily denied. LD 4.

Nearly two years later, on January 28, 2008, petitioner collaterally challenged his conviction in Placer County Superior Court, raising the same claims as in his direct appeal. LD

5. This petition was denied on June 9, 2008 on the ground that it was untimely with citation to In re Robbins, 18 Cal. 4th 770, 780 (1998). LD 6.

On September 14, 2009, petitioner appealed the superior court denial of his habeas petition. See LD 7. In his moving papers, petitioner raised seven claims not previously raised: (1) the trial court improperly restricted the evidence petitioner was able to present during trial; (2) Brady violation; (3) all elements of certain charged offenses not proven; (4) double jeopardy; (5) illegal prior conviction used to enhance sentence and enhancement statutes were unconstitutionally applied; and (6) petitioner's sentence was disproportionate and was the result of multiple punishments for the same crime. Id.

On October 1, 2009, the petition was summarily denied by the state appellate court. LD 8.

On April 26, 2010, petitioner appealed to the California Supreme Court. LD 9. On January 12, 2011, the petition was denied. See Doc. No. 26.

On May 6, 2010, during the pendency of the state habeas petitions, petitioner filed the instant application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Here, petitioner brings forth the following claims: (1) he was prevented from presenting a defense; (2) he was denied access to exculpatory evidence; (3) there was insufficient evidence to convict him; (4) he was subject to double jeopardy; (5) he was subjected to an illegal enhancement of his prison sentence; (6) his sentence was enhanced on the basis of a prior conviction that was illegally produced; (7) his sentence is disproportionate to other sentences meted out for the same or similar conduct and is unconstitutionally excessive; and (8) his appellate counsel for was ineffective for omitting issues on appeal.

On August 23, 2010, petitioner filed a motion to stay and abey. On September 7, 2010, respondent filed a motion to dismiss. On November 15, 2010, petitioner filed a second motion to stay and an opposition to the motion to dismiss. On November 22, 2010, respondent filed a reply. On ...


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