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Dorel Arguilez v. Keman

February 28, 2011

DOREL ARGUILEZ,
PETITIONER,
v.
KEMAN, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Peter C. Lewis U.S. Magistrate Judge United States District Court

REPORT AND RECOMMENDATION ON MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS SCOTT

I.

INTRODUCTION Petitioner Dorel Arguilez ("Petitioner") has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his 2001 conviction for burglary, attempted robbery, battery and criminal threats in San Diego Superior Court case number SCE 211708. (Doc. No. 6 at 1; Doc. No. 10 at 2.) On July 14, 2010, the undersigned ordered Respondent to serve a response to the Petition. (Doc. No. 7.) On September 24, 2010, Respondent filed a Motion to Dismiss the Petition, arguing that the Petition was filed beyond the statute of limitations. (Doc. No. 10.)

To date, Petitioner has not filed an opposition. Therefore, having reviewed the Motion and the underlying record, the Court concludes that Petitioner's habeas petition is untimely and recommends Respondent's Motion to Dismiss be GRANTED..

BACKGROUND A jury convicted Petitioner of three counts of residential burglary (Pen. Code, § § 459, 460), one count of attempted first degree robbery (§§ 211, 212.5 subdivision (a), 664), two counts of battery (§242), and one count of criminal threat (§422). (Lodgment 4 at 1.) The court found Petitioner had served three prior prison terms (§ §667.5, subd. (b); 668) and had two serious felony priors (§ §667, subd. (a)(1); 1192.7, subd. (c)), which constitute two strike priors (§ §667, subds. (b)-(i); 1170.12). (Id. at 1-2.) Based upon the present conviction and Petitioner's prior offenses, the trial court sentenced Petitioner to a total term of 86 years to life in prison, comprised of three consecutive terms of 25 years to life for each of the three burglary counts, two consecutive five-year terms for two serious felony priors, and an additional year for one of the three prison priors. (Id. at 2.)

Petitioner timely appealed and on February 19, 2003, the Court of Appeal, Fourth Appellate District, issued an unpublished opinion affirming the trial court's judgment. (Lodgment 4.) Petitioner filed a Petition for Review in the California Supreme Court on March 26, 2003 (Lodgment 5), which the California Supreme Court denied on April 30, 2003. (Lodgment 6.)

Thereafter, on May 7, 2004, Petitioner began his first round of habeas petitions in state court by claiming multiple violations of his due process rights at trial. (Lodgment 7 at 3-4.) The California Supreme Court denied that petition on March 23, 2005 citing In re Dixon (1953) 41 Cal.2d 756. (Lodgment 8.)*fn1

More than three years later, Petitioner began a second round of habeas petitions by filing a petition in superior court on August 15, 2008. (Lodgment 9.) Petitioner alleged the trial judge violated federal law by applying his convictions and three separate convictions under the Three Strikes law when he served one concurrent sentence [] for the prior cases. Therefore, it should count as one prior conviction. Further, the waiver of Petitioner's rights during the plea hearings on the prior convictions was invalid and, therefore, he should be entitled to withdraw his pleas or have them stricken. He was never told the convictions were considered separate, even though he only served one concurrent sentence.

(Lodgment 10 at 2.) The Superior Court summarily denied the petition as untimely on September 5, 2008. (Lodgment 10 at 3.)

On September 23, 2008, following the denial of his untimely petition by the superior court, Petitioner filed a petition in the Court of Appeal. (Lodgment 11.) This petition set forth claims identical to those alleged in the previous petition filed in superior court. (Id. at 4-13.) The Court of Appeal denied this petition on October 10, 2008. (Lodgment 12.) Petitioner filed a petition for review in the California Supreme Court on October 20, 2008 (Lodgment 13), which was denied on April 1, 2009. (Lodgment 14.)

Petitioner filed the instant Petition for Writ of Habeas Corpus in this Court on February 4, 2010. (Doc. No. 1.)*fn2

III.

LEGAL STANDARD On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted. Section 2244(d)(1) of Title 28 of the United States Code provides:

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 ...


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