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Jose Gonzalez v. Rick Hill

August 3, 2012

JOSE GONZALEZ, PETITIONER,
v.
RICK HILL, RESPONDENT.



The opinion of the court was delivered by: Honorable R. Gary Klausner United States District Judge

MEMORANDUM AND ORDER RE: DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS (28 U.S.C. § 2254) AS SUCCESSIVE

I. INTRODUCTION

On June 12, 2012, Jose Gonzalez ("Petitioner") constructively filed a Petition for Writ of Habeas Corpus by a Person in State custody pursuant to 28 U.S.C. § 2254 ("Petition").*fn1 (ECF No. 1.)

Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has examined the Petition and finds that it plainly appears from its face that Petitioner is not entitled to relief in the district court. Specifically, the Court finds that the Petition is subject to summary dismissal because it is "successive." See 28 U.S.C. § 2244(b).

II. PROCEDURAL HISTORY

On June 17, 2004, Petitioner was convicted, after entering guilty pleas in the Riverside County Superior Court, case number RIF103784, of driving under the influence and causing death or bodily injury to another person (Cal. Veh. Code § 23153(a)) and two additional people (Cal. Veh. Code § 23558) (Count Five), driving with a blood alcohol concentration of 0.08 percent or more and causing death or bodily injury to another person (Cal. Veh. Code § 23153(b)) and two additional people (Cal. Veh. Code § 23558) (Count Six), and driving without a valid driver's license (Cal. Veh. Code § 12500(a)) (Count Seven). On June 24, 2004, Petitioner was convicted, after a jury trial in the same case, of murder (Cal. Pen. Code § 187(a)) (Count One) and gross vehicular manslaughter while intoxicated with two prior convictions for driving under the influence (Cal. Pen. Code § 191.5(d)) (Count Two). On July 28, 2004, Petitioner was sentenced to a total state prison term of nineteen years to life. (Pet. at 1, 2; People v. Gonzalez, No. E036413, 2005 WL 1970255, at *1 (Cal. App. Aug. 16, 2005).)

On direct appeal to the California Court of Appeal, Petitioner's counsel filed a request for an independent review of the record pursuant to People v. Wende, 25 Cal.3d 436 (1979) and Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). On August 16, 2005, after examining the entire record, the court of appeal determined that no arguable issues existed and affirmed the judgment. (Gonzalez, 2005 WL 1970255, at *1; Official Records of California Courts.*fn2

Although Petitioner claims he filed a petition for review in the California Supreme Court, the Court's independent review of the state courts' website did not reveal such a filing by Petitioner. (Official Records of California Courts.)

On January 8, 2006, Petitioner constructively filed a habeas corpus petition in the California Supreme Court, case number S140278. On September 27, 2006, the supreme court denied the petition. (Official Records of California Courts.)

On December 4, 2006, Petitioner filed a second habeas corpus petition in the California Supreme Court, case number S148504. On May 23, 2007, the supreme court denied the petition with citation to In re Clark, 5 Cal. 4th 750 (1993). (Official Records of California Courts.)

On June 21, 2007, Petitioner filed a § 2254 petition in this District challenging the same conviction herein. (EDCV 07-760-RGK (OP) ECF No. 1.) On May 18, 2010, Judgment was entered denying the petition and dismissing the action with prejudice. (Id. ECF No. 23.)

On July 26, 2011, Petitioner filed a § 2254 petition in this District challenging the same conviction herein. (EDCV 11-1645-RGK (OP) ECF No. 1.) On December 5, 2011, Judgment was entered denying the petition and dismissing the action without prejudice as successive. (Id. ECF No. 9.)

III. DISCUSSION

A. Standard of ...


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