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Juan M. Tidwell, Sr v. M. Martel*Fn1

March 6, 2013

JUAN M. TIDWELL, SR., PETITIONER,
v.
M. MARTEL*FN1 , ET AL.,
RESPONDENT.



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

ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the amended petition filed June 22, 2012. (Dkt. No. 11.) Petitioner challenges his 2006 conviction for kidnapping to commit rape and/or robbery, penetration with a foreign object, sexual battery by restraint, and two counts of forcible rape, for which he was sentenced to a state prison term of 151 years to life. (Dkt. No. 11 at 1; Lod. Doc. 1.*fn2 ) Before the court is respondent's August 24, 2012 motion to dismiss the petition as untimely filed (Dkt. No. 18), which petitioner opposes (Dkt. No. 23). The court will also address petitioner's September 28, 2012 motion for an evidentiary hearing on the merits of the amended petition. (Dkt. No. 22.)

For the reasons discussed below, the undersigned will recommend that respondent's motion to dismiss be granted.

BACKGROUND

On July 26, 2006, petitioner was convicted by a jury of the offenses set forth above. A number of sentencing enhancements were found true. On November 3, 2006, petitioner was sentenced to an indeterminate state prison term of 151 years to life. (Lod. Doc. 1.)

Petitioner appealed the judgment to the California Court of Appeal, Third Appellate District. On June 17, 2008, the court of appeal struck three enhancements and affirmed the judgment as modified. (Lod. Doc. 1.) The California Supreme Court denied review on October 1, 2008. (Lod. Docs. 3-4.)

Petitioner filed eight pro se post-conviction collateral challenges to his conviction in the state courts, all petitions for writs of habeas corpus*fn3

First Action

April 20, 2009: Petition filed in the Sacramento County Superior Court (Lod. Doc. 5); July 6, 2009: Petition denied (Lod. Doc. 6).

Second Action September 22, 2009: Petition filed in the California Court of Appeal, Third Appellate District (Lod. Doc. 7);

October 1, 2009: Petition denied (Lod. Doc. 8).

Third Action November 5, 2009: Petition filed in the California Supreme Court (Lod. Doc. 9);

June 9, 2010: Petition denied (Lod. Doc. 10).

Fourth Action March 23, 2011: Petition filed in the Sacramento County Superior Court (Lod. Doc. 11);

April 20, 2011: Petition denied (Lod. Doc. 12).

Fifth Action April 27, 2011: Petition filed in the California Court of Appeal, Third Appellate District (Lod. Doc. 13);

May 12, 2011: Petition denied (Lod. Doc. 14).

Sixth Action November 20, 2011: Petition filed in the Sacramento County Superior Court (Lod. Doc. 15);

December 23, 2011: Petition denied (Lod. Doc. 16).

Seventh Action January 25, 2012: Petition filed in the California Court of Appeal, Third Appellate District (Lod. Doc. 17);

February 2, 2012: Petition denied (Lod. Doc. 18).

Eighth Action February 7, 2012: Petition filed in the California Supreme Court (Lod. Doc. 19); and May 23, 2012: Petition denied (Lod. Doc. 20).

Petitioner initiated this federal action on February 18, 2011 and filed the operative amended petition on June ...


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