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Raymond Newson v. James A. Yates

March 18, 2011

RAYMOND NEWSON,
PETITIONER,
v.
JAMES A. YATES, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Report and Recommendation (ECF No. 20) of Magistrate Judge Bernard G. Skomal, recommending that this Court deny Respondent James A. Yates' Motion to Dismiss (ECF No. 9) the Petition for Writ of Habeas Corpus (ECF No. 1) filed by Petitioner Raymond Newson.

BACKGROUND

On December 20, 2006, a jury convicted Petitioner in San Diego County Superior Court of selling, transporting, and possessing for sale cocaine base in violation of California law. (Lodgment 1 at 112; Lodgment 4 at 1). Petitioner was sentenced to seventeen years in custody. (Lodgment 1 at 112; Lodgment 4 at 2).

Petitioner filed a notice of appeal. On April 24, 2007, Petitioner's attorney advised him: "The entire appeal process will take about a year, so be patient. The process can be very slow." (ECF No. 16-1 at 2). On June 7, 2007, Petitioner's attorney filed an appellate brief pursuant to People v. Wende, 25 Cal. 3d 436 (1979) and Anders v. California, 386 U.S. 738 (1967). (Lodgment 2). The appellate court gave Petitioner an opportunity to file a supplemental brief and, after receiving an extension of time from the court, Petitioner filed a supplemental brief on July 30, 2007. (Lodgment 3; Lodgment 4 at 3; ECF No. 16-1 at 4).

On August 24, 2007, the appellate court affirmed the judgment. (Lodgment 4). Petitioner was not on the service list of the appellate court and the prison mail log indicates that Petitioner's attorney did not send Petitioner any correspondence after June 27, 2007. (ECF No. 16-1 at 13-14).

On August 12, 2008, Petitioner filed a "Notice and Request for Ruling" in the appellate court seeking a ruling on his Supplemental Brief. Id. at 4. After receiving no response from the appellate court, on September 26, 2008, Petitioner filed a "Request ... for a Status Report" with the appellate court. Id. at 9.

On October 1, 2008, the appellate court sent Petitioner a copy of the Remittitur and opinion. See id. at 14.

On October 30, 2008, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, raising two grounds for relief.*fn1 (Lodgment 6). On May 13, 2009, the California Supreme Court denied the petition. (Lodgment 7). On August 5, 2009, Petitioner filed a second petition for writ of habeas corpus in the California Supreme Court, raising four grounds for relief. (Lodgment 8). On January 13, 2010, the California Supreme Court denied the Petition. (Lodgment 9).

On April 8, 2010, Petitioner, proceeding pro se, filed the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court, raising six grounds for relief. (ECF No. 1).

On June 14, 2010, Respondent filed the Motion to Dismiss. (ECF No. 9). Respondent contends that the entire Petition should be dismissed with prejudice as barred by the applicable statute of limitations, 28 U.S.C. § 2244(d). In the alternative, Respondent contends that four of the claims in the Petition are procedurally defaulted.

On January 31, 2011, the Magistrate Judge issued the Report and Recommendation, recommending that the Motion to Dismiss be denied in its entirety. (ECF No. 20).

On February 9, 2011 and February 25, 2011, Respondent filed objections to the Report and ...


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