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Noel Rodriguez v. David B. Long*Fn1

September 6, 2012

NOEL RODRIGUEZ, PETITIONER,
v.
DAVID B. LONG*FN1 , RESPONDENT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the third amended petition filed April 12, 2012. (Dkt. No. 16 ("Ptn.").) Before the court is respondent's June 26, 2012 motion to dismiss the petition as untimely filed. (Dkt. No. 21.) Petitioner has filed an opposition to that motion and respondent has filed a reply. (Dkt. Nos. 22, 23.) For the reasons discussed below, the undersigned will recommend that respondent's motion to dismiss be granted.

BACKGROUND

On August 27, 2002, petitioner pled guilty to first degree murder in the death of his cellmate. He was sentenced to an indeterminate prison term of 25 years to life. (Ptn. at 3, 5; Lod. Doc. 1.)*fn2 Petitioner did not appeal.

Petitioner subsequently filed five state post-conviction collateral challenges with respect to the judgment:

The First Petition*fn3

July 14, 2009: Petition for writ of habeas corpus filed in the Lassen County Superior Court (Lod. Doc. 2);

August 31, 2009: Petition denied in part and transferred to the Kings County Superior Court (Lod. Doc. 3);

October 30, 2009: Petition denied (Lod. Doc. 4).

The Second Petition September 22, 2009: Petition for writ of habeas corpus filed in the California Court of Appeal, Third Appellate District (Lod. Doc. 5); October 1, 2009: Petition denied (Lod. Doc. 6).

The Third Petition October 1, 2009: Petition for writ of habeas corpus filed in the California Supreme Court (Lod. Doc. 7);

April 14, 2010: Petition denied, citing In re Robbins, 18 Cal. 4th 770, 780 (1998) (Lod. Doc. 8).

The Fourth Petition

January 20, 2011: Petition for writ of habeas corpus filed in the California Supreme Court (Lod. Doc. 9);

July 20, 2011: Petition denied, citing In re Robbins, 18 Cal. 4th 770, 780 (1998); In re Clark, 5 Cal. 4th 750, 767-769 (1993) (Lod. Doc. 10).

The Fifth Petition August 8, 2011: Petition for writ of habeas corpus filed in the California ...


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