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Camaray Carter v. Elvin Valenzuela

July 9, 2012

CAMARAY CARTER, PETITIONER,
v.
ELVIN VALENZUELA, ACTING WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION*fn1

On June 14, 2012, Camaray Carter ("Petitioner"), a California State prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition") pursuant to 28 U.S.C. § 2254. The Court has conducted a preliminary review of the Petition, as required by Rule 4 of the Rules Governing Section 2254 Cases. Pursuant to Rule 4, the Court must summarily dismiss the Petition because "it plainly appears from the face of the petition and any exhibits annexed to it that [Petitioner] is not entitled to relief." R. 4 of the Rules Governing Section 2254 Cases; see also O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) ("[R]ule 4 of the Rules Governing Section 2254 in the United States District Courts explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated." (internal quotation marks omitted)).

In the Petition, Petitioner challenges his 1999 conviction and sentence. (Petition at 2). However, Petitioner previously filed a federal habeas petition (Case No. CV 08-05973 PSG (SS)) (the "Prior Petition"), which also challenged his 1999 conviction and sentence. *fn2

On October 23, 2009, the District Judge denied the Prior Petition as untimely and dismissed the action with prejudice. Petitioner appealed the judgment and on July 18, 2011, the U.S. Court of appeals for the Ninth Circuit denied Petitioner's request for a certificate of appealability. On June 19, 2012, the Court issued an Order To Show Cause Why This Action Should Not Be Dismissed As Successive (the "Order to Show Cause"). Petitioner was required to file a response to the Order to Show Cause by July 3, 2012 if he wished to contest the dismissal of this action. As of today, however, Petitioner has failed to file a response.

Petitioner, who is the only party to this action, has consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (See Docket No. 3). For the reasons *fn3 discussed below, it is recommended that the Petition be DENIED as successive and that this action be DISMISSED without prejudice.

II. PRIOR PROCEEDINGS

On July 28, 1999, a Los Angeles County Superior Court jury convicted Petitioner of criminal conspiracy in violation of California Penal Code ("Penal Code") section 182(a), attempted murder in violation of Penal Code sections 664 and 187, and robbery in violation of Penal Code section 211. (Petition at 2). On August 18, 1999, the trial court imposed an indeterminate term of thirty-five years to life in state prison. (Carter v. Uribe, Case No. CV 08-05973 PSG (SS)), Report and Recommendation ("R&R") at 2).

On September 28, 2000, the California Court of Appeal affirmed the trial court's judgment. (R&R at 2). Petitioner subsequently filed a petition for review in the California Supreme Court, which was denied on January 10, 2001. (Id.). Several years later, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on June 11, 2008. (Id.).

On September 12, 2008, Petitioner filed the Prior Petition before this Court. In the Prior Petition, Petitioner raised three claims challenging his 1999 conviction and sentence. On October 23, 2009, the District Judge denied the Prior Petition as untimely and dismissed the action with prejudice. Petitioner appealed the judgment and on July 18, 2011, the U.S. Court of Appeals for the Ninth Circuit denied Petitioner's request for a certificate of appealability. Petitioner filed the instant Petition on June 14, 2012.

III. PETITIONER'S CLAIM

Petitioner's sole claim for federal habeas relief is that the California Supreme Court erroneously applied a procedural bar (untimeliness) to his state habeas petition. (Petition at 5).

IV. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which effected amendments to the federal habeas statutes, applies to the instant Petition because Petitioner filed it after AEDPA's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997). ...


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