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D. Dustin v. Raul Lopez

May 13, 2011

D. DUSTIN, PETITIONER,
v.
RAUL LOPEZ, WARDEN,
RESPONDENT.



ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.

Examination of the affidavit reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court ...." Rule 4 of the Rules Governing Section 2254 Cases. The court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition (1) specify all grounds of relief available to the Petitioner; (2) state the facts supporting each ground; and (3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski, 915 F.2d at 420. Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks, 908 F.2d at 491.

Further, the Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001).

BACKGROUND

Petitioner, who is currently incarcerated at Corcoran State Prison ("CSP"), was sentenced in June 1995 to a term of 39 years, 4 months, and assessed a restitution fine. See Pet. at 11. Although the precise nature of the petition is unclear*fn1 , it appears that petitioner is contesting the imposition of the restitution fine, as well as his conviction for, inter alia, alleged violations of the Fifth, Sixth and Fourteenth Amendments. Petitioner also requests a photocopy of the entire state court record because he asserts that his copy was improperly disposed of by CSP staff on January 8, 2003. See Doc. No. 1 at 46. Lastly, petitioner seeks appointment of counsel.

Following his conviction and sentence in June 1995, petitioner sought direct review in the state appellate court. See Doc. No. 1 at 18. That petition was denied in 1996.*fn2

Petitioner then sought review before the state supreme court.*fn3 On an unidentified date, that court denied his appeal as untimely. See Doc. No. 1 at 18.

Petitioner filed a petition for writ of habeas corpus in an unidentified state court either in 1996 or 1997. See Doc. No. 1 at 18. His petition was subsequently denied by the state appellate court. Id. It is unclear whether petitioner appealed to the state supreme court.

Petitioner then appears to have filed a second petition for writ of habeas corpus in the Tehama County Superior Court, which summarily denied the petition on July 12, 2010 as incoherent and ineligible, and as untimely with citation to In re Clark, 5 Cal.4th 750 (Cal. 1993). See Doc. No. 1 at 20. There is no indication that petitioner appealed to either the California Court of Appeal or to the California Supreme Court.

DISCUSSION

Upon careful consideration, the undersigned finds that it plainly appears from the face of the petition that petitioner's claims are barred by the statute of limitations

A. Timeliness of the Petition

Because the instant petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. ...


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