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Salvador Garcia Reyes v. Connie Gipson

March 23, 2012

SALVADOR GARCIA REYES,
PETITIONER,
v.
CONNIE GIPSON,
RESPONDENT.



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

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY [Doc. 1]

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 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 January 7, 2010, the district attorney filed an information in the Kings County Superior Court charging Petitioner with the following: in counts I and V, rape (Cal. Penal Code*fn1 § 261(a)(2)); in counts II, III, IV, VI, VII, IX, XI, and XII, forcible lewd act upon a child (§ 288(b)(1)); in counts VIII and XIII, continuous sexual abuse of a child (§ 288.5(a)); in count X, lewd act upon a child (§ 288(a)); in counts XIV and XV, rape of a spouse (§ 262(a)(2)); and in count XVI, forcible sodomy (§ 286(c)(2)). It was further alleged as to counts I, II, and XII that Petitioner tied or bound his victim (§ 667.61(b)); as to counts I through XIII, that the statute of limitations was extended (§ 803(f)(1)); and as to counts I through XVI, that Petitioner committed sex offenses against multiple victims (§ 667.61(b) & (e)(5)).

That same day, Petitioner entered a negotiated no contest plea to counts II, XI, and XIV, and the court granted the People's request to dismiss the remaining counts and allegations with a Harvey*fn2 waiver.

On February 8, 2010, the court sentenced Petitioner to state prison for an aggregate term of twenty-four years, computed as follows: three consecutive upper terms of eight years for each of the substantive offenses.

Petitioner filed a timely notice of appeal. On April 27, 2011, the California Court of Appeal, modified the fines, but affirmed the judgment in all other respects.

On July 13, 2011, the California Supreme Court denied review. Petitioner did not file any state post-conviction collateral petitions.

Petitioner filed the instant federal petition for writ of habeas corpus on October 26, 2011. Respondent filed an answer to the petition on February 2, 2012. Petitioner filed a traverse on March 15, 2012.

STATEMENT OF FACTS

Because the facts are not relevant to the issue raised in the instant petition for writ of habeas corpus, the Court will not set forth a detailed statement of the facts in support of his conviction, other than the terms of the negotiated plea. On January 7, 2010, in the Kings County Superior Court, Petitioner pled nolo contendre to two counts of lewd and lascivious acts upon a minor child in violation of California Penal Code section 288(b)(1) (counts two and eleven) and one count of rape in violation of California Penal Code section 262(a)(1) (count fourteen).

DISCUSSION

I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Kings County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

II. Standard of Review

Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...


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