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Carrillo v. Soto

United States District Court, Central District of California

November 14, 2014

ARTHUR CARRILLO, Petitioner,
v.
J. SOTO, Warden, Respondent.

MEMORANDUM OPINION AND GRANTING MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY

JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

On October 27, 2013, [1] Arthur Carrillo (“Petitioner”), a California state prisoner, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). On May 29, 2014, Respondent filed a Motion to Dismiss the Petition on the ground that the Petition is time-barred by the one-year statute of limitation set forth in 28 U.S.C. § 2244(d). On October 1, 2014, Petitioner filed an Opposition. Respondent did not file a Reply. The Motion to Dismiss is now ready for decision.

For the reasons set forth below, the Petition is dismissed with prejudice as untimely.

STATE COURT PROCEEDINGS

In Los Angeles County Superior Court case number NA069946, Petitioner was convicted of second-degree robbery (Cal. Penal Code § 211), during which he personally used a handgun (Cal. Penal Code § 12022.53(b)) and inflicted great bodily injury (Cal. Penal Code § 12022.7(a)). (Respondent’s Lodged Document (“LD”) 1 at 114-15.) Petitioner also admitted he had prior convictions pursuant to Cal. Penal Code §§ 667(a)(1), 667(b)-(i), 1170.12(a)-(d), and 667.5(b). (LD 1 at 58-59.) Petitioner was sentenced to 24 years in state prison. (LD 1 at 135.)

On May 31, 2007, in case number B193979, the California Court of Appeal affirmed the judgment and conviction in an unpublished opinion. (LD 2.)

Petitioner filed a petition for review in California Supreme Court (“CSC”) case number S153930. (LD 3.) The petition was denied on August 8, 2007. (LD 4.)

On March 20, 2008, Petitioner constructively filed a petition for writ of habeas corpus in Los Angeles County Superior Court case number NA069946. (LD 5.) The petition was denied on April 3, 2008. (LD 6.) On April 17, 2008, Petitioner constructively filed a petition for writ of habeas corpus in California Court of Appeal case number B207255. (LD 7.) The petition was denied on May 7, 2008, with citations In re Clark, 5 Cal.4th 750, 763-87 (1993), and In re Swain, 34 Cal.2d 300, 303-04 (1949). (LD 8.) On June 19, 2008, Petitioner constructively filed a petition for writ of habeas corpus in CSC case number S164542. (LD 9.) The petition was summarily denied on November 12, 2008. (LD 10.)

On October 6, 2008, while his CSC habeas petition was still pending, Petitioner constructively filed a federal petition for writ of habeas corpus in this Court. (LD 11.) On November 21, 2008, the Court dismissed the petition without prejudice. (LD 12.)

On December 8, 2008, Petitioner constructively filed another federal petition for writ of habeas corpus in this Court. (LD 13.) On February 5, 2010, the petition was dismissed without prejudice. (LD 14.)

On November 9, 2010, Petitioner filed a second petition for writ of habeas corpus in Los Angeles County Superior Court case number NA069946.[2] On May 5, 2011, the petition was denied. (LD 15.)

On July 29, 2011, another “petition for writ of habeas corpus” was received in Los Angeles County Superior Court case number NA069946.[3] (LD 16.) On October 3, 2011, Petitioner constructively filed a petition for writ of habeas corpus in California Court of Appeal case number B236453. (LD 17.) On October 18, 2011, the petition was denied as a “repetitious petition”, with citations to In re Clark, 5 Cal.4th at 765-66, Hagan v. Superior Court, 57 Cal.2d 767, 769-71 (1962), and In re Waltreus, 62 Cal.2d 218, 225 (1965). (LD 18.) On November 13, 2011, Petitioner constructively filed a petition for writ of habeas corpus in CSC case number S198115. (LD 19.) On March 14, 2012, the petition was denied with citations to In re Robbins, 18 Cal.4th 770, 780 (1998), and In re Clark, 5 Cal.4th at 767-69. (LD 20.)

On December 6, 2012, Petitioner constructively filed another petition for writ of habeas corpus in Los Angeles County Superior Court case number NA069946.[4] (LD 21.) On March 12, 2013, the petition was denied. (LD 22.) On May 12, 2013, Petitioner constructively filed a petition for writ of habeas corpus in California Court of Appeal case number B248888. (LD 23.) On June 5, 2013, the petition was denied with citations to inter alia In re Clark, 5 Cal.4th at 765-66, and Hagan, 57 Cal.2d at 769-71. (LD 24.). On July 30, 2013, Petitioner constructively filed a petition for writ of habeas corpus in CSC case number ...


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