United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
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).
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.
reasons set forth below, the undersigned recommends that
respondent's motion to dismiss be granted.
state court record, lodged in this court by respondent,
documents the following procedural history. 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).
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
January 18, 2006, the California Supreme Court summarily
denied review. Lodg. Docs. 3-4 (California Supreme Court Case
2008 to 2016, petitioner pursued multiple pro se applications
for state post-conviction relief. 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.
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.
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.