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Carlos H. Almeida v. Greg Lewis

January 12, 2012

CARLOS H. ALMEIDA,
PETITIONER,
v.
GREG LEWIS,
RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING RESPONDENT'S MOTION TO DISMISS PETITION, GRANTING PETITIONER LEAVE TO WITHDRAW THE UNEXHAUSTED CLAIMS WITHIN THIRTY DAYS FROM THE DATE OF SERVICE OF THIS ORDER, AND DENYING MOTIONS FOR DISCOVERY [Docs. 19, 23, 24, 25]

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).

BACKGROUND

On June 4, 2008, in the California Superior Court, County of Tulare, Petitioner pled no contest to assault with a deadly weapon (Cal. Penal Code § 245(a)(1)).*fn2 Petitioner also admitted personally inflicting great bodily injury during the commission of the offense (§ 12022.7(a)), committing the assault for the benefit of a criminal street gang (§ 168.22(b)(1)(C)), and that the assault was a serious felony (§ 969f).

On August 7, 2008, Petitioner sought to withdraw his plea mainly on the ground of ineffective assistance of counsel. The trial court denied the motion on August 13, 2008.

Petitioner was subsequently sentenced to two years on the assault conviction, three years on the great-bodily-injury enhancement, and ten years on the gang enhancement for a total term of fifteen years in state prison.

On December 3, 2008, Petitioner filed a timely notice of appeal in the California Court of Appeal, Fifth Appellate District. On April 21, 2009, the Court of Appeal reversed and remanded the case to the trial court with instructions to conduct a Marsden inquiry to assess defense counsel's effectiveness and reconsider Petitioner's motion to withdraw his plea in light of the findings.

On July 29 and August 4, 2009, the trial court held a Marsden hearing and determined his defense counsel did not render ineffective assistance. Thus, the trial court denied Petitioner's motion to withdraw his plea and reinstated his fifteen-year prison sentence.

On February 11, 2010, Petitioner filed a state petition for writ of habeas corpus in the Tulare County Superior Court. The Superior Court denied the petition on March 18, 2010. On March 16, 2010, Petitioner appealed the court's ruling to the California Court of Appeal, Fifth Appellate District. The docket reflects that Petitioner also submitted a letter to the appellate court raising ineffective assistance of counsel claims. The Court of Appeal affirmed the judgment on July 2, 2010.

On May 7, 2010, Petitioner filed a state petition for writ of habeas corpus in the California Court of Appeal, Fifth District, in case number F060063. The Court of Appeal denied the petition on March 10, 2011.

On November 29, 2010, Petitioner filed a state petition for writ of habeas corpus in the California Supreme Court in case number S188594. The California Supreme Court denied the petition on May 18, 2011.

On March 1, 2011, Petitioner filed another state petition for writ of habeas corpus in the California Superior Court, County of Tulare, in case number VHC248968. The Superior Court denied the petition on March 3, 2011.

Petitioner filed the instant petition for writ of habeas corpus on July 25, 2011. On August 9, 2011, the Court granted Petitioner's motion to amend his original petition. Petitioner filed an amended petition on September 2, 2011.

Respondent filed the instant motion to dismiss on December 14, 2011. Petitioner filed an ...


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