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David Earl Gray v. Gary Swarthout

September 1, 2011

DAVID EARL GRAY, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c)(17). Respondent moves to dismiss on the grounds that: (1) the petition challenges two separate state court judgments, one from 1998 and another from 2007,*fn1 in violation of Rule 2(e) of the Rules Governing Section 2254 Cases ("Rule"); (2) the claims regarding the 1998 judgment are barred by the statute of limitations; and (3) this court should not reach the claims regarding the 2007 judgment because petitioner's appeal of that conviction is pending in state court. Because the court finds the petition violates Rule 2(e), that the challenge to the 1998 judgment is time-barred, and that petitioner's appeal of the 2007 judgment is pending in state court, the court recommends that respondent's motion to dismiss be granted.

I. Background

A. 1998 Judgment

On October 8, 1998, petitioner pled no contest in the Sacramento County Superior Court to conspiracy , two counts of robbery, and two counts of false imprisonment. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc.") 1. A number of sentencing enhancements were also found true. Id. On the same day, the superior court sentenced petitioner to a state prison term of seven years and four months. Id. On March 7, 2000, the California Court of Appeal, Third Appellate District, affirmed the judgment. Lodg. Doc. 2. On May 17, 2000, the California Supreme Court denied review. Lodg. Doc. 3.

Petitioner subsequently filed six pro se state post-conviction collateral challenges to the 1998 judgment.*fn2 Petitioner filed two of these state petitions before May 17, 2000, both of which were also denied before that date. Lodg. Docs. 4 (petition filed in California Court of Appeal, Third Appellate District on November 23, 1999; denied on December 9, 1999), 5 (petition filed in Sacramento County Superior Court on February 7, 2000; denied on April 6, 2000). After May 17, 2000, petitioner filed four more state petitions, dated September 4, 2003, March 1, 2010, April 26, 2010, and June 7, 2010,*fn3 respectively. Lodg. Docs. 6, 7, 9, 11. The state courts denied each of these petitions. Lodg. Docs. 6, 8, 10, 12.

B. 2007 Judgment

On June 19, 2007, petitioner was convicted in the Sacramento County Superior Court of second degree murder with the use of a deadly weapon, and two prior convictions were found true. Pet. at 1;*fn4 Mot., Lodg. Doc. 13. The superior court sentenced petitioner to a state prison term of 51 years to life. Pet. at 1. Petitioner alleges that his 1998 conviction was used to enhance this sentence. Id. at 15.

On June 29, 2007, petitioner filed a notice of appeal, but the state appellate court dismissed the appeal finding it was taken from a non-appealable order. Lodg. Doc. 14. On April 22, 2008, petitioner sought review in the California Supreme Court on the ground he had been denied his right to appeal. Lodg. Doc. 15. The California Supreme Court issued an order to show cause returnable in the state court of appeal. Lodg. Doc. 16 (ordering respondent to show cause why trial court did not err by refusing to accept petitioner's notice of appeal at sentencing and why petitioner should not therefore be allowed to file a belated notice of appeal in the superior court). On December 2, 2009, the state court of appeal granted petitioner the opportunity to file a notice of appeal. Lodg. Doc. 14; see also In re Gray, 179 Cal. App. 4th 1189 (2009). On February 1, 2010, petitioner filed a notice of appeal, and that appeal is still pending.*fn5 Lodg. Doc. 17; see also Pet. at 7. After filing the February 2010 appeal, petitioner filed three pro se state post-conviction collateral actions, all of which were denied. Lodg. Docs. 7-12.

C. Petitioner's Claims

Petitioner challenges the1998 judgment of conviction as well as the 2007 judgment of conviction. Pet. at 1, 15. Petitioner claims that the 1998 judgment, obtained as a result of petitioner's no-contest plea, violated his constitutional rights, and that the plea bargain procedure was defective. See Pet. Petitioner also claims the trial court gave misleading, illusory, and erroneous advice regarding petitioner's rights to appeal, and that trial and appellate counsel rendered ineffective assistance of counsel. Id. As for the 2007 judgment, petitioner claims the trial court violated federal and state laws by using his 1998 plea to enhance his sentence. Id.

II. Respondent's Motion to Dismiss

Respondent moves to dismiss on the grounds that the petition challenges two separate state court judgments in violation of Rule 2(e), the claims regarding the 1998 judgment are barred by the statute of limitations; and that this court should not reach the claims regarding the 2007 judgment because petitioner's appeal of that conviction is pending in state court.*fn6

This court has authority under Rule 4 of the Rules Governing Section 2254 Cases to dismiss a petition if it "plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." As a corollary to that rule, the court may also consider a respondent's motion to dismiss, filed in lieu of an answer, on the same grounds. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss for failure to exhaust state remedies); White v. ...


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