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Darnell Wayne Roberts v. Teri Gonzalez

February 27, 2012

DARNELL WAYNE ROBERTS, PETITIONER,
v.
TERI GONZALEZ, RESPONDENTS.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM AND ORDER

INTRODUCTION

On October 20, 2011, Darnell Wayne Roberts (hereinafter referred to as "Petitioner"), a California state prisoner proceeding pro se, filed a "Petition for Writ of Habeas Corpus by a Person in State Custody," pursuant to 28 U.S.C. § 2254 ("Petition").*fn1 Petitioner also filed a "Consent to Proceed Before a United States Magistrate Judge." In accordance with the Court's Order Requiring Response to Petition, on January 18, 2012, Respondent filed a "Motion to Vacate Order Requiring Response to Petition; Memorandum of Points and Authorities" and "Notice of Lodgment", contending that the Petition should be dismissed on the grounds that it is a second or successive petition and Petitioner failed to comply with the requirements surrounding successive petitions set forth in 28 U.S.C. §2244(b)(1) and 3(A), as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Respondent also filed a "Consent to Proceed Before a United States Magistrate Judge."

On January 20, 2012, the Court issued a Minute Order ordering Petitioner to file an Opposition or Statement of Non-Opposition. Petitioner failed to timely file a Response to the Court's Minute Order.

Having reviewed the allegations in the Petition, Respondent's Motion to Vacate Order Requiring Response to Petition and the matters set forth in the record, it is HEREBY ORDERED that the Motion to Vacate Order Requiring Response be granted and the matter be dismissed.

PRIOR PROCEEDINGS

On May 8, 2003, Petitioner pled nolo contendere in the Los Angeles County Superior Court to three counts of robbery with use of a handgun in violation of California Penal Code ("PC") §§211, 12022.53(b) and 12022.5. Petitioner admitted prior strike allegations pursuant to PC §667(a)(1). Petitioner was sentenced to prison for thirty-three (33) years and four months. (Respondent's Lodgment No. 1; see Petition at 2.)

Petitioner did not appeal his conviction to the California Court of Appeal. (See Petition at 2.)

On September 26, 2007, Petitioner filed a "Petition for Writ of Habeas Corpus" in the United States District Court for the Central District of California which was given Case No. CV 07-06251-GPS (VBK).*fn2

(Respondent's Lodgment 2.) Respondent moved to dismiss the Petition on the grounds it was untimely under 28 U.S.C. § 2244(d)(1). On February 8, 2008, a Report and Recommendation of United States Magistrate Judge was issued recommending the Petition be dismissed as untimely. (Respondent's Lodgment No. 3.) On July 20, 2008, United States District Judge George P. Schiavelli adopted the findings of the Magistrate Judge (Respondent's Lodgment No. 4) and entered Judgment dismissing the Petition with prejudice. (Respondent's Lodgment No. 5.)

PETITIONER'S CONTENTIONS

Petitioner contend the following, inter alia:

1. Petitioner's Sixth Amendment right to a fair trial under the Apprendi, Blakely and ...


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