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Bagsby v. Ducart

United States District Court, C.D. California

January 13, 2015

JAMES LAMONT BAGSBY, JR., Petitioner,
v.
CLARK E. DUCART, Warden [1], Respondent

James Lamont Bagsby, Jr., Petitioner, Pro se, Cresent City, CA.

For Greg Lewis, Respondent: Angela M Borzachillo, CAAG - Office of Attorney General, San Diego, CA.

REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

JEAN ROSENBLUTH, UNITED STATES MAGISTRATE JUDGE.

This Report and Recommendation is submitted to the Honorable Percy Anderson, U.S. District Judge, under 28 U.S.C. § 636 and General Order 05-07 of the U.S. District Court for the Central District of California.

PROCEEDINGS

On April 21, 2014, in the Northern District of California, Petitioner constructively filed a Habeas Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, [2] challenging his 2010 convictions for second-degree murder and 10 counts of assault with a firearm. (Pet. at 2.) The Petition includes a memorandum of points and authorities and attached exhibits. On May 23, 2014, the Northern District of California transferred the case to this Court. On August 12, 2014, Respondent filed an Answer, arguing in part that the Petition is time barred. On September 5, 2014, Petitioner filed a Reply.

The Court's June 12, 2014 Order Requiring Response to Petition required Respondent to raise any timeliness argument in a motion to dismiss, which Respondent did not do. Nonetheless, because Petitioner had the opportunity to respond to the argument in his Reply and untimeliness is obvious on the face of the Petition, the Court considers Respondent's argument. Cf. Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001) (district court has authority to raise statute-of-limitations issue sua sponte when untimeliness is obvious on face of petition and may deny petition as long as it gives petitioner adequate notice and opportunity to respond).

PETITIONER'S CLAIMS

I. Petitioner's prison sentence of 107 years to life for crimes he committed when he was 15 years old constitutes cruel and unusual punishment in violation of the Eighth Amendment. (Pet. at 6; Pet. Mem. P. & A. at 14-17.)[3]

II. The trial court prejudicially failed to state reasons for imposing the upper term for each of the firearm enhancements. (Pet. at 6; Pet. Mem. P. & A. at 17-19.)

III. Petitioner was denied the effective assistance of trial and appellate counsel. (Pet. at 6; Pet. Mem. P. & A. at 19-24.)

IV. The trial court's failure to hold a competency hearing violated Petitioner's due process right not to be tried while incompetent. (Pet. at 7; Pet. Mem. P. & A. at 24-26.)

V. The " failure of trial court to hold special hearing on Petitioner's mental disorder" violated Petitioner's right to due process. (Pet. at 7; ...


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