-AGR Le Saundra N Jenkins v. W Miller, No. 2:2011cv01344 - Document 3 (C.D. Cal. 2011)

Court Description: OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS by Judge Otis D Wright, II. On February 11, 2011, Petitioner LeSaundra Jenkins, proceeding pro se, filed a document entitled "Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody." (Dkt. No. 1.) Notwithstanding the title of the document, this Court construes the document as a Petition for Writ of Habeas Corpus By a Person in State Custody (Petition) pursuant to 28 U.S.C. § 2254. The Petition challenges her conviction in Ventura County Superior Court on December 16, 1999. IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the habeas petition and action for lack of subject matter jurisdiction. (See Order for details.) (mp)

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-AGR Le Saundra N Jenkins v. W Miller Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 LESAUNDRA JENKINS, 12 Petitioner, 13 14 v. W. MILLER, 15 Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) No. CV 11-1344-ODW (AGR) OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS On February 11, 2011, Petitioner LeSaundra Jenkins, proceeding pro se, filed a 18 document entitled Motion to Vacate, Set Aside or Correct Sentence By a Person in 19 Federal Custody. (Dkt. No. 1.) Notwithstanding the title of the document, this Court 20 construes the document as a Petition for Writ of Habeas Corpus By a Person in State 21 Custody ( Petition ) pursuant to 28 U.S.C. § 2254. The Petition challenges her 22 conviction in Ventura County Superior Court on December 16, 1999. (Petition at 2, 4 & 23 Exhibits A-C.) 24 I. 25 PROCEDURAL HISTORY 26 Pursuant to Fed. R. Evid. 201, this Court takes judicial notice of the records in a 27 prior federal habeas corpus action brought by Petitioner in the Central District of 28 California: LeSaundra Jenkins v. Gloria A. Henry, CV 07-5774-SGL (AGR) ( Jenkins I ). Dockets.Justia.com 1 The Petition indicates Petitioner entered a guilty plea. (Petition at 2.) The 2 California Court of Appeal dismissed her appeal. (Id. at 2-3.) Petitioner did not file a 3 petition for review in the California Supreme Court. 4 On August 27, 2008, the District Court in Jenkins I issued an Order Adopting 5 Magistrate Judge s Report and Recommendation and Judgment denying the petition 6 with prejudice based on expiration of the statute of limitations. Jenkins I, Dkt. Nos. 33- 7 34. On October 1, 2008, Petitioner filed a notice of appeal. (Dkt. No. 36.) On October 8 27, 2008, the District Court denied Petitioner s request for a certificate of appealability. 9 (Dkt. No. 44.) On October 2, 2009, the Ninth Circuit denied Petitioner s request for a 10 certificate of appealability. (Dkt. No. 48.) On April 5, 2010, the United States Supreme 11 Court denied the petition for writ of certiorari. Jenkins v. Hornbeak, 130 S. Ct. 2344, 12 176 L. Ed. 2d 565 (2010). 13 14 The current Petition challenges the same conviction and sentence. (Petition at 2, 4 & Exhibits A-C.) 15 II. 16 DISCUSSION 17 The Petition was filed after enactment of the Antiterrorism and Effective Death 18 Penalty Act of 1996 ( AEDPA ). Therefore, the Court applies the AEDPA in reviewing 19 the petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 20 (1997). 21 The AEDPA provides, in pertinent part: Before a second or successive 22 application permitted by this section is filed in the district court, the applicant shall move 23 in the appropriate court of appeals for an order authorizing the district court to consider 24 the application. 28 U.S.C. § 2244(b)(3)(A). A district court does not have jurisdiction to 25 consider a second or successive petition absent authorization from the Ninth Circuit. 26 Burton v. Stewart, 549 U.S. 147, 152, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007); Cooper 27 v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) ( When the AEDPA is in play, the 28 district court may not, in the absence of proper authorization from the court of appeals, 2 1 consider a second or successive habeas application. ) (citation and quotation marks 2 omitted). 3 Here, the Petition is a second or successive petition that challenges the same 4 conviction and sentence imposed by the same judgment of the state court as in Jenkins 5 I. (Petition at 2, 5.) The petition in Jenkins I was denied with prejudice and on the 6 merits. See Beaty v. Schriro, 554 F.3d 780 (9th Cir.), cert. denied, 130 S. Ct. 364 7 (2009). 8 9 It plainly appears from the face of the Petition that Petitioner has not received authorization from the Ninth Circuit Court of Appeals to file a second or successive 10 petition. This Court must, therefore, dismiss the Petition as a successive petition for 11 which it lacks jurisdiction under 28 U.S.C. § 2244(b)(3). See Burton, 549 U.S. at 152. 12 Rule 4 of the Rules Governing Section 2254 Cases in the United States Courts 13 provides that [i]f it plainly appears from the face of the petition and any attached 14 exhibits that the petitioner is not entitled to relief in the district court, the judge must 15 dismiss the petition and direct the clerk to notify the petitioner. Here, summary 16 dismissal is warranted. 17 18 19 ORDER IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the habeas petition and action for lack of subject matter jurisdiction. 20 21 Date: March 7, 2011 22 23 _____________________________ OTIS D. WRIGHT II UNITED STATES DISTRICT JUDGE Presented By: 24 25 26 _________________________________ ALICIA G. ROSENBERG UNITED STATES MAGISTRATE JUDGE 27 28 3

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