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Gutierrez v. Biter

United States District Court, Ninth Circuit

July 3, 2013

BENITO GUTIERREZ, Petitioner,
v.
MARTIN D. BITER, Warden, Respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Dean D. Pregerson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On April 9, 2012, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" in the United States District Court for the Eastern District of California, bearing a signature date of March 30, 2012, and accompanied by an attached memorandum ("Pet. Mem."). The Petition claims that Petitioner's trial counsel allegedly failed adequately to "investigate the nature of the offender, " and failed to present mitigating evidence at sentencing including evidence of Petitioner's purported mental impairment, his alleged use of alcohol before the shooting, and an alleged cultural explanation for the shooting.

On May 3, 2012, the United States District Court for the Eastern District of California transferred the Petition to this Court.

On September 5, 2012, Respondent filed a "Motion to Dismiss, etc., " contending that the Petition is untimely and procedurally defaulted. Petitioner did not file any opposition to the Motion to Dismiss within the allotted time.

BACKGROUND

On November 20, 1998, a jury found Petitioner guilty of the September 20, 1981 murder of Chung Sang Yoon (Respondent's Lodgment 2; Respondent's Lodgment 5, pp. 6-7).[1] The jury found true the allegations that Petitioner personally used a firearm (a rifle) in the commission of the murder, and that Petitioner intentionally killed the victim while lying in wait (Respondent's Lodgment 2). Petitioner received a sentence of life without the possibility of parole plus two years (Respondent's Lodgments 1, 3).

On November 1, 2000, the California Court of Appeal remanded for reconsideration of the restitution fine, but otherwise affirmed the judgment (Respondent's Lodgment 4). Petitioner did not file a petition for review in the California Supreme Court (Petition, p. 3).

On August 9, 2000, while the appeal was pending, Petitioner, represented by counsel, filed a habeas corpus petition in the California Court of Appeal, in case number B143402 (Respondent's Lodgment 5).[2] On November 1, 2000, the Court of Appeal issued an Order to Show Cause, transferring the petition to the Los Angeles County Superior Court for a hearing concerning Petitioner's claim of ineffective assistance of trial counsel in failing to file a motion to suppress Petitioner's taped statement to police (Respondent's Lodgment 6). Following a hearing, the Superior Court issued a written decision on April 25, 2002, denying the petition (Respondent's Lodgment 7).

Over eight years later, on May 25, 2010, Petitioner filed a pro se habeas petition in the California Court of Appeal, in case number B224816, bearing a signature date of May 13, 2010 (Respondent's Lodgment 8). The Court of Appeal denied the petition summarily on May 27, 2010 (Respondent's Lodgment 9).

Petitioner filed a pro se habeas corpus petition in the California Supreme Court on October 4, 2010, in case number S187025, bearing a signature date of September 30, 2010 (Respondent's Lodgment 10). The California Supreme Court denied the petition on April 13, 2011, with a citation to In re Robbins , 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998), signifying that the court deemed the petition to be untimely (Respondent's Lodgment 11).[3]

On November 4, 2011, Petitioner filed another pro se habeas corpus petition in the California Supreme Court, in case number S197808. The California Supreme Court denied the petition on February 22, 2011, with citations to In re Robbins, supra, and In re Miller , 17 Cal.2d 734, 112 P.2d 10 (1941), signifying that the petition was untimely and ...


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