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Washington v. Figueroa

United States District Court, E.D. California

May 26, 2017

JAMES C. WASHINGTON, Petitioner,
v.
FRED FIGUEROA, Respondent.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner without counsel, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Now pending before the court is respondent's motion to dismiss (ECF No. 12) which argues that the current petition is untimely. Petitioner has responded to the motion (ECF No. 17) and respondent has filed a reply (ECF No. 20). After review of the pleadings, the court recommends that respondent's motion be granted.

         I. Procedural Background

         Petitioner was convicted in the Sacramento County Superior Court of second degree robbery pursuant to California Penal Code § 211 and receiving stolen property pursuant to Cal. Penal Code § 496(a). Lodg. Doc. No. 1. On January 16, 2013, that court sentenced him to a determinate term of seventeen years. Id.

         On April 29, 2014, the court of appeal reversed petitioner's stolen property conviction and otherwise affirmed the judgment. Lodg. Doc. No. 2. Petitioner did not seek review with the California Supreme Court of that decision.

         Petitioner filed his first state habeas petition with the Sacramento County Superior Court on August 14, 2014.[1] Lodg. Doc. No. 3. That petition was denied on the merits on October 27, 2014. Lodg. Doc. No. 4.

         Then, on January 20, 2015, petitioner filed a second habeas petition with the court of appeal for the third appellate district. Lodg. Doc. No. 5. That petition was summarily denied on February 5, 2015. Lodg. Doc. No. 6.

         On March 1, 2015 petitioner returned to the Sacramento County Superior Court with a third petition. Lodg. Doc. No. 7. This petition was denied on May 4, 2015. Lodg. Doc. No. 8. The court declined to consider petitioner's claim of ineffective assistance of trial counsel, reasoning that petitioner had previously brought such a claim in his August 2014 petitioner and failed to include his current claims therein. Id. at 1. The court then dismissed petitioner's claim of ineffective assistance of appellate counsel on the merits. Id. at 1-2.

         A fourth petition was filed on May 18, 2015 with the court of appeal for the third appellate district. Lodg. Doc. No. 9. That petition was summarily denied on May 28, 2015. Lodg. Doc. No. 10.

         A fifth petition, identical to the fourth, was filed simultaneously with the California Supreme Court on May 18, 2015. Lodg. Doc. No. 11. That petition was summarily denied on August 12, 2015. Lodg. Doc. No. 12.

         A sixth petition was filed with the Sacramento County Superior Court on September 21, 2015. Lodg. Doc. No. 13. The petition was denied as successive and delayed. Lodg. Doc. No. 14.

         A seventh petition was filed on December 20, 2015 with the court of appeal for the third appellate district. Lodg. Doc. No. 15. The petition was summarily denied on December 31, 2015. Lodg. Doc. No. 16.

         The eighth and last state habeas petition was filed with the California Supreme Court on February 24, 2016. Lodg. Doc. No. 17. That petition was denied with a citation to In re Miller, 17 ...


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