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Dorel Arguilez v. Thomas Carpenter; Scott M. Keman

June 24, 2011

DOREL ARGUILEZ,
PETITIONER,
v.
THOMAS CARPENTER; SCOTT M. KEMAN, WARDEN, RESPONDENTS.



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

ORDER

The matter before the Court is the Report and Recommendation ("R&R") (ECF No. 11) of Magistrate Judge Peter C. Lewis, filed on February 28, 2011, recommending that this Court dismiss the Petition for Writ of Habeas Corpus filed by Petitioner Dorel Arguilez. (ECF No.1)

BACKGROUND

On September 28, 2001, Petitioner was convicted by a jury of three counts of residential burglary in violation of California Penal Code sections 459 and 460; one count of attempted first degree robbery in violation of California Penal Code sections 211, 212.5(a), and 664; two counts of battery in violation of California Penal Code section 242; and one count of criminal threat in violation of California Penal Code section 422. Petitioner was sentenced to 86 years in prison.

Petitioner appealed his conviction to the California Court of Appeal. On February 19,2003, the appeal was denied. On March 26, 2003, Petitioner filed a petition for review in the California Supreme Court. On April 30, 2003, the petition for review was denied.

On May 7, 2004, Petitioner filed a petition for writ of habeas corpus. On March 25, 2005, the California Supreme Court denied Petitioner's petition for writ of habeas corpus.

On August 15, 2008 Petitioner filed a petition for writ of habeas corpus in the Superior Court of California. On September 5, 2008, the petition for writ of habeas corpus was denied.

On September 23, 2008, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. On October 10, 2008, the petition for writ of habeas corpus was denied.

On October 20, 2008, Petitioner filed a petition for review in the California Supreme Court. On April 1, 2009, the petition for review was denied.

On February 4, 2010, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. On April 23, 2010, Petitioner filed a First Amended Petition for Writ of Habeas Corpus. On June 24, 2010, Petitioner filed the Second Amended Petition for Writ of Habeas Corpus pending before this Court.

On July 27, 2010, Respondent filed a Motion to Dismiss the Second Amended Petition for Writ of Habeas Corpus and a Notice of Lodgment. (ECF No. 10). Respondent contends that the Petition is barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). The docket reflects that Petitioner did not respond to the Motion to Dismiss.

On February 28, 2011, the Magistrate Judge issued the Report and Recommendation recommending that Motion to Dismiss Second Amended Petition for Writ of Habeas Corpus be granted on the grounds that the Petition is barred by the statute of limitations. (ECF No.11).

On March 18, 2011, service of the Report and Recommendation on Petitioner was returned as undeliverable containing the statement: "[return to sender] no such person." (ECF No. 12). The Report and Recommendation had been sent to the address Petitioner listed as his address on his Second Amended Petition. ...


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