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Walter W. Connell v. Susan Hubbard

September 21, 2012

WALTER W. CONNELL, PETITIONER,
v.
SUSAN HUBBARD, WARDEN, RESPONDENT.



ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In January of 2001 petitioner was convicted in the Sacramento County Superior Court of several sex offenses involving a child under the age of fourteen. On February 23, 2001 he received a sentence of thirty-two years imprisonment followed by seventy-five years to life imprisonment. Petitioner raises several claims in his federal habeas petition pending before this court; specifically: (1) the criminal complaint against him was filed beyond the statute of limitations; (2) he was illegally sentenced to upper-term, consecutive sentences on counts 1-5 of conviction; (3) there was a judicial abuse of discretion in keeping a particular juror during voir dire when the prospective juror told another prospective juror that the defendant must be guilty; (4) juror misconduct when a prospective juror told another prospective juror that the defendant must be guilty during voir dire; (5) denial of his Miranda rights; and (6) improper sentencing enhancements were imposed.

Respondent has filed a motion to dismiss the petition on the grounds that it is untimely. Petitioner has opposed the motion to dismiss and respondent has filed a reply. For the reasons set forth below, it is recommended that the motion to dismiss be granted.

I. PROCEDURAL HISTORY

On May 28, 2002, the California Court of Appeal for the Third Appellate District affirmed petitioner's judgment of conviction. (See Resp't's Lodged Doc. 2.) The California Supreme Court denied his petition for review on August 14, 2002.

On May 26, 2003*fn1 petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (See Resp't's Lodged Doc. 5.) The Sacramento Superior Court denied that habeas petition on June 24, 2003. (See Resp't's Lodged Doc. 6.) Thereafter, on August 6, 2003 petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. (See Resp't's Lodged Doc. 7.) The California Court of Appeal denied that habeas petition on August 15, 2003. (See Resp't's Lodged Doc. 8.) Petitioner then filed a state habeas petition in the California Supreme Court on September 18, 2003, which summarily denied the petition on June 9, 2004. (See Resp't's Lodged Docs. 9 & 10.)

Next, petitioner filed another state habeas petition in the California Supreme Court on December 13, 2004. (See Resp't's Lodged Doc. 11.) On February 22, 2006, the California Supreme Court stated the following in denying the habeas petition, "Petition for writ of habeas corpus is DENIED. (See In re Robbins (1998) 18 Cal.4th 770, 780; In re Clark (1993) 5 Cal.4th 750; In re Swain (1949) 34 Cal.2d 300, 304; People v. Duvall (1995) 9 Cal.4th 464, 474.)" (Resp't's Lodged Doc. 12.)

On February 21, 2007, petitioner filed another state habeas petition in the Sacramento County Superior Court. (See Resp't's Lodged Doc. 13.) The Sacramento County Superior Court denied this state habeas petition in a written opinion on May 9, 2007. In denying the petition, the court stated that the petition was successive and that it raised issues that should have been raised on appeal. Additionally, the court explained that even if the petition was not procedurally barred petitioner failed to state a prima facie case for relief. (See Resp't's Lodged Doc. 14.)

In July 2007, petitioner filed another state habeas petition in the California Court of Appeal. (See Resp't's Lodged Doc. 15.) That court denied the petition citing to In re Steele, 32 Cal. 4th 682, 692 (2004) and In re Hillery, 202 Cal. App. 2d 293 (1962). (See Resp't's Lodged Doc. 16.)

On July 12, 2009, petitioner filed yet another state habeas petition in the Sacramento County Superior Court. (See Resp't's Lodged Doc. 17.) That court denied the petition on September 21, 2009. (See Resp't's Lodged Doc. 18.)

On August 18, 2010, petitioner again filed a state habeas petition in the Sacramento County Superior Court. (See Resp't's Lodged Doc. 19.) The Superior Court denied the petition in a written decision on October 14, 2010. (See Resp't's Lodged Doc. 20.)

On October 27, 2010, petitioner filed a state habeas petition in the California Court of Appeal. (See Resp't's Lodged Doc. 21.) That petition was summarily denied on November 4, 2010. (See Resp't's Lodged Doc. 22.)

On November 12, 2010, petitioner filed another state habeas petition in the Sacramento County Superior Court. (See Resp't's Lodged Doc. 23.) The Superior Court denied that petition on January 13, 2011 in a written decision. (See Resp't's Lodged Doc. 24.)

On December 5, 2010, petitioner filed a state habeas petition in the California Supreme Court. (See Resp't's Lodged Doc. 25.) The California Supreme Court denied that petition citing to the decisions in Robbins and Clark on June 8, 2011. (See Resp't's Lodged Doc. 26.)

On January 26, 2011, petitioner filed a state habeas petition in the California Court of Appeal. (See Resp't's Lodged Doc. 27.) The California Court of Appeal summarily denied that petition on February 4, 2011. (See Resp't's Lodged Doc. 28.) ]

This federal habeas proceeding began when petitioner filed his federal habeas petition on July 11, 2011. On May 7, 2012, respondent filed a motion to dismiss the federal habeas petition arguing that the petition was filed beyond the one-year ...


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