United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER
SHERI PYM, Magistrate Judge.
On October 10, 2013, petitioner Richard Maquinales, a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 ("Petition"). Petitioner challenges his 2002 state court conviction on the grounds that (1) his Eighth Amendment right to be free of cruel and unusual punishment was violated when he was not re-sentenced following the enactment of new re-sentencing procedures in 2012 known as "Proposition 36, " and (2) he has been falsely imprisoned because he was awarded 660 days in presentence credit that were awarded but never applied to his sentence, and consequently his time for release has passed. Pet. at 5-6.
On December 23, 2013, respondent filed an Answer to the Petition ("Answer"), asserting that: (1) ground two for false imprisonment is not cognizable under 28 U.S.C. § 2254; (2) the Petition is impermissibly second or successive; (3) even if the Petition is not successive, it contains unexhausted claims and is time-barred; and (4) the Petition is without merit. Answer at 2-5.
Both petitioner and respondent have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the court finds this is an impermissibly successive petition, and therefore does not reach respondent's other arguments. Accordingly, the Petition will be denied and this action dismissed with prejudice.
Following a bifurcated trial in 2002, petitioner was found guilty of: (1) assault upon a peace officer with a deadly weapon or force likely to produce great bodily injury, in violation of California Penal Code § 245(c); and (2) attempted second degree robbery, in violation of California Penal Code §§ 664, 211. See Lodg. No. 2 at 1-2; Pet. at 2. The trial court sentenced petitioner to a total of sixteen years and four months in state prison. See Lodg. No. 2 at 2.
On August 22, 2003, the California Court of Appeal affirmed petitioner's conviction, but modified the judgment to grant petitioner 660 days of presentence credit. Lodg. No. 2 at 11.
Petitioner filed a petition for review in the California Supreme Court, which was denied on October 29, 2003. Lodg. Nos. 3, 4.
On October 15, 2004, plaintiff filed his first federal habeas petition in the United States District Court for the Southern District of California, which was subsequently transferred to this court. Lodg. No. 8. His petition was dismissed with prejudice on July 6, 2005. Lodg. Nos. 9, 10, 11.
On May 20, 2011, petitioner filed his second federal habeas petition with this court. Lodg. No. 12. His petition was dismissed with prejudice as ...