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Dwayne Meredith v. Raul Lopez

June 30, 2011

DWAYNE MEREDITH, PETITIONER,
v.
RAUL LOPEZ, WARDEN, RESPONDENT.



ORDER

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the undersigned on the consent of the parties.*fn1 See 28 U.S.C. § 636(c)(1). On March 2, 2011, petitioner filed a motion for stay and abeyance. On March 25, 2011, respondent filed a motion to dismiss. Upon review of the motions, the documents in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

FACTUAL AND PROCEDURAL BACKGROUND On August 22, 2007, a jury convicted petitioner in the Sacramento County Superior Court of residential burglary, receiving stolen property and possession of methamphetamine. Clerk's Transcript ("CT") at 194-96. On September 28, 2007, petitioner was sentenced to an aggregate term of 15 years in state prison, which included a sentencing enhancement in light of a prior conviction. Id. at 255.

On July 3, 2008, petitioner, proceeding pro se, filed a Petition for Writ of Error Coram Nobis with the Sacramento County Superior Court challenging the trial court's use of a prior burglary conviction as a "strike." Lodgment ("LD") 1. On September 17, 2008, the petition was construed as a petition for writ of habeas corpus challenging the prior conviction. LD 2. As such, the petition was denied as untimely and lacking in merit. Id. Petitioner appealed to the California Court of Appeal, which, on May 15, 2009, affirmed the lower court's ruling denying the petition. LD 3.

On October 28, 2008, petitioner, again proceeding pro se, filed a petition for writ of mandamus / habeas corpus in the California Court of Appeal, Third Appellate District. LD 16. There, petitioner asserted a claim for ineffective assistance of trial counsel and for ineffective assistance of appellate counsel. There is no record on the website of the California Court of Appeal that this petition was docketed, despite the fact that the face of this petition indicates that it was.

On December 16, 2008, petitioner's appellate counsel filed an opening brief in the California Court of Appeal, Third Appellate District, alleging instructional error and a due process violation for the trial court's error in compelling petitioner to stand trial in prison garb.*fn2

LD 4. On June 15, 2009, the California appellate court affirmed petitioner's conviction and sentence in a published opinion. LD 10. On June 29, 2009, petitioner, through appellate counsel, filed a petition for rehearing. LD 11. On July 2, 2009, the petition for rehearing was summarily denied by the California Court of Appeal, Third Appellate District. LD 12.

On July 28, 2009, petitioner appealed to the California Supreme Court. LD 13. On September 20, 2009, the petition for review was summarily denied. LD 14.

On December 24, 2009, petitioner filed a petition for a writ of certiorari with the United States Supreme Court. LD 16. The petition was denied on March 8, 2010. Id.

On June 7, 2010, petitioner filed a petition for writ of mandamus in this court. Doc. No. 1. This action is proceeding on petitioner's first amended petition filed August 4, 2010.

On March 2, 2011, petitioner filed a motion for stay and abeyance.

On March 14, 2011, petitioner filed a petition for writ of habeas corpus with the California Supreme Court. LD 17. That petition is pending.

On May 5, 2011, respondent filed an opposition to the motion to stay. On June 13, 2011, petitioner filed a reply to respondent's opposition.

On March 25, 2011, respondent filed a motion to dismiss. Petitioner has not filed an opposition to the motion to dismiss.

On May 31, 2011, petitioner filed a motion to strike his unexhausted claims. On June 7, 2011, respondent filed a statement of non-opposition. On June 13, 2011, petitioner filed a motion that the court construes as a motion to withdraw ...


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