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Raymond Wright v. J.N. Katavich

March 19, 2013

RAYMOND WRIGHT, PETITIONER,
v.
J.N. KATAVICH,
RESPONDENT.



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

DISMISSING 28 U.S.C.§2254 PETITION FOR WRIT OF HABEAS CORPUS

MEMORANDUM AND ORDER

I. BACKGROUND

A. Conviction and Direct Appeal

On September 16, 2011, in Los Angeles County Superior Court case number BA379739, petitioner pleaded no contest to one count of possession of cocaine base for sale. (Cal. Health & Saf. Code §11351.5). The trial court found true two prior convictions within the meaning of California's Three Strikes Law (Cal.Penal Code §§ 1170.12(a)-(d); 667 (b)-(I)), and one prior conviction alleged pursuant to California Health and Safety Code § 11370.2(a). Petitioner was sentenced to six years in state prison.

On October 18, 20011, petitioner appealed his conviction in the California Court of Appeal. That court affirmed his conviction, but modified his presentence custody credit. Petitioner did not file a Petition for Review in the California Supreme Court.

B. State Habeas Corpus and Mandate Petitions

On October 7, 2011, petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeal. That Petition was denied on October 18, 2011.

On December 12, 2011, petitioner filed a Petition for Writ of Habeas corpus in the California Supreme Court. That Petition was denied on March 21, 2012.

On February 15, 2012, petitioner filed a Petition for Writ of Mandate in the California Court of Appeal. That Petition was denied on June 19, 2012.

On June 27, 2012, petitioner filed a Petition for Review of the California Court of Appeal's denial of his Petition for Writ of Mandate in the California Supreme Court. That Petition was denied on August 8, 2012.

On September 18, 2012, petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeal. That Petition was denied on September 25, 2012.

C. Instant Habeas Corpus Petition

The instant §2254 Petition was filed on July 9, 2012. Respondent filed an initial Return to the Petition on August 28, 2012, arguing that this Court should abstain from considering the merits of the claims alleged in the Petition because of ongoing state court proceedings. On September 27, 2012, the Court found that the state court proceedings had concluded, and therefore abstention was no longer appropriate. This Court further found that Ground Three of the Petition was unexhausted. Petitioner subsequently elected to withdraw Ground Three, and this Court ordered respondent to respond to the merits of Grounds One and Two. The parties have consented to the jurisdiction of the Magistrate Judge. Respondent filed a Supplemental Return on February 15, 2013, and petitioner filed a Reply on March 5, 2013.

II. PETITIONER'S CONTENTIONS

1. Petitioner's right to due process was violated because prior strike allegations made pursuant to California's Three Strikes Law (Cal. Penal Code ยงยง667(b)-(I), 1170.12(a)-(d)) were not properly pled and proven and did not constitute strikes within the meaning of California law ...


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