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Willie D. White v. Bruno Stolc

May 2, 2011

WILLIE D. WHITE, PETITIONER,
v.
BRUNO STOLC, WARDEN, RED ROCK CORRECTIONAL CENTER, MATTHEW CATE, SECRETARY, CALIFORNIA DIRECTOR OF CORRECTIONS, MELISSA LEA, CHIEF DEPUTY WARDEN, CALIFORNIA OUT OF STATE CORRECTIONAL FACILITY UNIT, RESPONDENTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER and FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding without counsel and in forma pauperis, with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated in Arizona, pursuant to the authority of the California Department of Corrections and Rehabilitation. Petitioner challenges his 2003 conviction in San Joaquin County Superior Court. The court ordered service of the petition on respondent*fn1 on January 4, 2011. Presently pending before the court are respondents' motion to dismiss the petition (Dkt. No. 13), and petitioner's motion to supplement his traverse (Dkt. No. 19), filed in tandem with his opposition to respondents' motion to dismiss. For the following reasons, the court recommends that respondents' motion to dismiss be granted.

BACKGROUND

On October 10, 2003, petitioner entered a plea agreement on a charge of voluntary manslaughter, resulting in a sentence of 11 years, imposed on November 3, 2003. (Lodged Document ("Ldgd. Doc.") No. 1 (San Joaquin Superior Court Case No. SF088234B).) Although petitioner filed a direct appeal on November 25, 2003, in the California Court of Appeal, Third Appellate District (Court of Appeal Case No. C045596), he requested its dismissal in May 2004, and the appeal was dismissed by order filed May 18, 2004. (Ldgd. Doc. Nos. 2, 3.)

The following chronology identifies petitioner's subsequent state court filings and their resolution:*fn2 First State Petition: California Supreme Court Case No. S121733 January 4, 2004: Petition for writ of habeas corpus filed in the California Supreme Court, (Ldgd. Doc. No. 4);

October 20, 2004: Petition denied, citing People v. Duvall (1995) 9 Cal. 4th 464, 474 (failure to state prima facie case for relief) (Ldgd. Doc. No. 5).

Second State Petition: San Joaquin County Superior Court Case No. SF088234B November 24, 2009: Petition for writ of habeas corpus filed in the San Joaquin County Superior Court (Ldgd. Doc. No. 6);

December 22, 2009: Petition denied on both procedural grounds and on the merits (Ldgd. Doc. No. 7).

Third State Petition: California Court of Appeal Case No. C064594, seeking review of denial of San Joaquin County Superior Court Case No. SF088234B March 28, 2010: Petition for writ of habeas corpus filed in the California Court of Appeal, Third Appellate District (Ldgd. Doc. No. 8);

April 8, 2010: Petition summarily denied (Ldgd. Doc. No. 9).

Fourth State Petition: California Supreme Court Case No. S181940, seeking review of denial of California Court of Appeal Case No. C064594, and San Joaquin County Superior Court Case No. SF088234B April 19, 2010: Petition for writ of habeas corpus relief filed in the California Supreme Court (Ldgd. Doc. No. 10);

June 9, 2010: Petition summarily denied (Ldgd. Doc. No. 11).

Fifth State Petition: California Court of Appeal Case No. C065859 August 18, 2010: Petition for writ of habeas corpus filed in the California Court of Appeal, Third ...


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