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Audette v. Arnold

United States District Court, E.D. California

September 1, 2017

CARLTON LEE AUDETTE, Petitioner,
v.
ERIC ARNOLD, Warden, Respondent.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Petitioner Carlton Lee Audette is a state prisoner proceeding pro se with a First Amended Petition (FAP) for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, which challenges his 2004 conviction for attempted second degree robbery. See ECF No. 4. Petitioner paid the filing fee. This matter is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c).

         Currently pending is respondent's motion to dismiss the FAP on the ground that it is successive and filed in this court without prior authorization from the Ninth Circuit Court of Appeals, as required by 28 U.S.C. § 2244(b). Alternatively, respondent moves for dismissal on the ground that the FAP is time-barred because filed after expiration of the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d). These matters have been fully briefed by the parties. See ECF Nos. 15-6, 20, 27. Pursuant to court order, respondent has supplemented the record with the evidence of petitioner's prior convictions including his “actual discharge date, ” and the parties have addressed the relevance of this evidence to the pending motion. See ECF Nos. 32, 33.

         For the reasons set forth below, the undersigned recommends that respondent's motion to dismiss be granted.

         BACKGROUND

         State Court Proceedings

         The state court record, lodged in this court by respondent, documents the following procedural history.[1] On May 11, 2004, in Shasta County Superior Court, petitioner was convicted by a jury of attempted second degree robbery (Count One), possession of a controlled substance (Count Two), and transportation of a controlled substance (Count Three). The jury found true six sentencing enhancement allegations. On June 17, 2004, petitioner was sentenced to an indeterminate state prison term of 88-years-to-life (58 years for the convictions, 30 years for the enhancements). See Lodged Document (Lodg. Doc.) No. 1 (Shasta County Superior Court Case No. 02F6333).

         On October 27, 2005, the California Court of Appeal, Third Appellate District, reversed petitioner's convictions on Counts Two and Three and directed the trial court to amend the abstract of judgment accordingly. Lodg. Doc. 2 (Court of Appeal Case No. C047196); see also ECF No. 29-1 at 9.

         On January 18, 2006, the California Supreme Court summarily denied review. Lodg. Docs. 3-4 (California Supreme Court Case No. S139398).

         From 2008 to 2016, petitioner pursued multiple pro se applications for state post-conviction relief.[2] His first state habeas petition was filed in the Shasta County Superior Court on July 28, 2008, and summarily denied by written order on September 22, 2008. Lodg. Doc. 5. Petitioner next filed a habeas petition in the California Court of Appeal, Third Appellate District, on February 26, 2009. Lodg. Doc. 6. That petition was summarily denied on March 26, 2009. Lodg. Doc. 7. On June 21, 2010, petitioner filed a habeas petition in the California Supreme Court. Lodg. Doc. 8. It was denied on February 2, 2011. Lodg. Doc. 9.

         On December 3, 2012, petitioner filed a motion for resentencing under Proposition 36 in the Shasta County Superior Court. Lodg. Doc. 10. It was denied on January 8, 2013. Petitioner appealed the denial on March 6, 2013. Lodg. Doc. 12. The California Court of Appeal, Third Appellate District, dismissed the appeal on October 22, 2013. Lodg. Docs. 11, 12. On July 23, 2015, petitioner filed a motion to recall the remittitur. Lodg. Doc. 13. The Court of Appeal summarily denied the motion on August 6, 2015. Lodg. Doc. 14. A petition for review of that denial was filed in the California Supreme Court on September 9, 2015. Lodg. Doc. 15. The petition for review was denied on October 14, 2015. Id.

         Petitioner filed a petition for writ of habeas corpus in the Shasta County Superior Court on November 17, 2015. Lodg. Doc. 16. It was denied on December 9, 2015. Lodg. Doc. 17. A petition for writ of mandate was filed in the California Court of Appeal, Third Appellate District on January 19, 2016. Lodg. Doc. 18. It was summarily denied on February 4, 2016. Lodg. Doc. 19. A petition for review was filed in the California Supreme Court on February 16, 2016. Lodg. Doc. 20. It was summarily denied on March 23, 2016. Lodg. Doc. 21.

         Federal ...


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