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Mario Alexander Nungaray v. Hedgepeth A.

June 13, 2012

MARIO ALEXANDER NUNGARAY,
PETITIONER,
v.
HEDGEPETH A., WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Josephine Staton Tucker, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on January 27, 2012. This petition did not specify any particular ground for relief or state any supporting facts. Therefore, on February 17, 2012, the Court issued an "Order Dismissing Petition with Leave to Amend."

On March 19, 2012, Petitioner filed a First Amended Petition ("the First Amended Petition" or "the Petition"). On May 2, 2012, Respondent filed an Answer, contending that Petitioner's claims are unexhausted and untimely. On May 21, 2012, Petitioner filed a reply.

BACKGROUND

In 1996, a jury found Petitioner guilty of first degree murder with personal use of a firearm (First Amended Petition, p. 2; see People v. Nungaray, 2011 WL 300214, at *1 (Cal. App. Feb. 1, 2011)). Petitioner received a sentence of twenty-nine years to life (First Amended Petition, p. 2; Clerk's Transcript ("C.T.") 4, 31; see People v. Nungaray, 2011 WL 300214, at *1).

The California Court of Appeal affirmed the judgment on January 7, 1998 (Respondent's Lodgment 6, pp. 1-2; see People v. Nungaray, 2011 WL 300214, at *1). On March 25, 1998, the California Supreme Court denied Petitioner's petition for review, in case number S068025 (Respondent's' Lodgment 2).

On August 2, 2007, Petitioner filed in the Los Angeles County Superior Court a "Motion for Request of All Trial Transcripts, etc." (see C.T. 5). On August 15, 2007, the Superior Court denied this motion (C.T. 5). On November 8, 2008, Petitioner filed a request in the Superior Court for a transcript of a "'Marsden*fn1 hearing' conducted on February 22, 1996" (see C.T. 7). On January 2, 2009, the Superior Court denied this request (C.T. 7).

In or about March of 2010, Petitioner submitted to the Superior Court an "Open Letter to the Court," requesting certain relief in regard to his conviction and sentence (C.T. 12- 28). On March 23, 2010, the Superior Court denied Petitioner's requests (C.T. 9-10).

On May 3, 2010, Petitioner filed a notice of appeal from the Superior Court's denial of his March, 2010 requests (C.T. 78). On October 4, 2010, Petitioner's appellate counsel filed an opening brief in this appeal pursuant to People v. Wende, 25 Cal. 3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071 (1979), and Anders v. California, 386 U.S. 738 (1967) (Respondent's Lodgment 4). On October 20, 2010, Petitioner filed a pro se supplemental brief (Respondent's Lodgment 5). On February 1, 2011, the Court of Appeal affirmed the Superior Court's denial of Petitioner's requests (Respondent's Lodgment 6; see People v. Nungaray, 2011 WL 300214 (Cal. App. Feb. 1, 2011)). On April 13, 2011, the California Supreme Court denied Petitioner's petition for review, in case number S191032 (First Amended Petition, p. 8; see Respondent's Lodgment 7).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. Petitioner's "juvenile counsel" allegedly rendered ineffective assistance, by assertedly failing to subpoena an expert psychologist to testify concerning Petitioner's purported inability to understand the adult legal system ...


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