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Melvin Richard Pena v. Matthew Cate

June 24, 2011

MELVIN RICHARD PENA, PETITIONER,
v.
MATTHEW CATE, RESPONDENT.



ORDER

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).

PROCEDURAL HISTORY

Petitioner challenges his 1998 conviction for violation of California Penal Code § 290 subd. (f) and his sentence of twenty-five years to life imprisonment. Pet. at 1. Petitioner's conviction and sentence were upheld on direct review on February 25, 2000 by the California Court of Appeals and on May 10, 2000 by the California Supreme Court. Id. at 2. On October 10, 2000, petitioner's writ of certiorari was denied by the United States Supreme Court. Id.

Over the course of the next ten years, petitioner sought habeas relief multiple times in the state courts. Petitioner first submitted a petition for writ of habeas corpus to the San Joaquin County Superior Court, which was denied on September 27, 2002. Pet. at 3-4. Petitioner, represented by counsel, then sought review before the state appellate court.

On September 1, 2004, the California Court of Appeals, Third Appellate District, published an opinion upon consolidation of three petitions for writ of habeas corpus pending before it, including petitioner's, for the purpose of addressing the contemptuous behavior of the attorney representing the individuals. See In re White, 121 Cal. App. 4th 1453 (Cal. Ct. App. 2004). The appellate court, in the 26-page opinion, found that the attorney abused the writ process by filing "patently frivolous" and "doomed to fail" petitions for habeas relief so as to defraud his clients who had no chance of success on appeal. See id. at 1456-57. Following numerous factual findings, the court sanctioned the attorney and dismissed the petitions pending before it, including petitioner's, as "frivolous." Id. at 1459.

Petitioner then returned to the San Joaquin County Superior Court with a second petition for writ of habeas corpus. See Pet. at 4a. On October 20, 2005, the superior court denied the petition. On December 26, 2006, the California Court of Appeals, Third Appellate District, denied the petition. Id. Lastly, on October 15, 2010, the California Supreme Court denied review. Id.

In one final attempt for relief, petitioner filed a petition for writ of error coram nobis in the California Court of Appeals, which was denied on October 21, 2010. Pet. at 4a. The California Supreme Court then denied it on January 12, 2011. Id. at 4b.

DISCUSSION

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 325-27 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (holding that AEDPA only applies to cases filed after statute's enactment). The instant petition was filed on April 14, 2011, and thus, it is subject to the provisions of AEDPA.

AEDPA imposes a one year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d) reads:

(1) 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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