Purvis Holloway v. Supreme Court of California, No. 2:2013cv04134 - Document 10 (C.D. Cal. 2013)

Court Description: MEMORANDUM DECISION AND ORDER DISMISSING PETITION by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing this action without prejudice. (mr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PURVIS HOLLOWAY, Petitioner, 12 MEMORANDUM DECISION AND ORDER v. 13 14 Case No. CV 13-4134 SS DISMISSING PETITION J. PRICE, Warden, Respondent. 15 16 17 I. 18 INTRODUCTION 19 On 20 June 3, 2013,1 Purvis Holloway ( Petitioner ), a 21 California state prisoner proceeding pro se, filed a Petition for 22 Writ of Habeas Corpus (the Petition ) pursuant to 28 U.S.C. 23 § 2254. Petitioner states that he is challenging his December 24 25 26 27 28 1 Because Petitioner is a pro se prisoner, the Court has calculated the filing date of the Petition pursuant to the mailbox rule as the date the Petition was signed and delivered to prison authorities for mailing, not the date it was received by the Court. See Houston v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988); Anthony v. Cambra, 236 F.3d 568, 574-75 (9th Cir. 2000). 1 18, 1987 conviction for rape and oral copulation. (Petition at 2 2). Court 3 jurisdiction to hear a challenge to Petitioner s 1987 conviction 4 because it appears he is no longer in custody pursuant to that 5 conviction, and, alternatively, because any claim relating to 6 that conviction is grossly untimely. However, as further discussed below, the lacks (See id.). 7 8 Petitioner is currently serving an indeterminate term of 9 twenty-five years to life, plus a consecutive determinate term of 10 one year for a prior prison term enhancement, for his May 9, 1995 11 conviction and sentence for possession of a firearm by a felon. 12 (See Purvis Holloway v. Warden Hamlet, C.D. Cal. Case No. CV 01- 13 2909 RJK (FMO) ( Prior Petition I ), Report and Recommendation, 14 Dkt. No. 47 at 2-3; see also California Appellate Courts Case 15 Information 16 Appellate District 17 construes the 18 Petitioner s 1995 conviction and sentence, which was enhanced by 19 the earlier 1987 conviction, the Court still lacks jurisdiction 20 because Petitioner has previously filed two habeas petitions in 21 this Court regarding the same 1995 conviction. 22 Petition is barred as successive. 23 No. 47 at 2-3; see also Purvis Holloway v. Second Appellate 24 2 25 26 27 28 Website, appellatecases.courtinfo.ca.gov, Case instant No. B093266).2 Petition liberally Even as if a the Second Court challenge to Therefore, the (See Prior Petition I, Dkt. The Court takes judicial notice of Petitioner s prior proceedings in this Court and the California state courts. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) ( [A] court may take judicial notice of its own records in other cases . . . . ); Porter v. Ollison, 620 F.3d 952, 955 n. 1 (9th Cir. 2010) (taking judicial notice of court dockets, including those available on the Internet, from petitioner s state court proceedings). 2 1 District, 2 ( Prior Petition II )). C.D. Cal. Case No. 07-3233 GPS (FMO), Dkt. No. 4 3 4 On July 24, 2013, the Court issued an Order To Show Cause 5 Why 6 Timeliness OSC ). 7 August 16, 2013 (the Timeliness OSC Response ). 8 On October 11, 2013, upon further review of the file, including 9 Petitioner s Response to the Timeliness OSC, the Court issued an 10 Order To Show Cause Why This Action Should Not Be Dismissed For 11 Lack Of Jurisdiction Or As Successive (the Juris. OSC ). 12 No. 8). 13 2013 (the Juris. OSC Response ). This Action Should Not Be (Dkt. No. 6). Dismissed As Untimely (the Petitioner filed a Response on (Dkt. No. 7). (Dkt. The Court received Petitioner s Response on November 8, (Dkt. No. 9). 14 15 Petitioner, who is the only party to this action, has 16 consented to the jurisdiction of the undersigned United States 17 Magistrate Judge pursuant to 28 U.S.C. § 636(c). 18 2). 19 Petition on procedural grounds before service of the Petition on 20 Respondent.3 21 3 22 23 24 25 26 27 28 (See Dkt. No. Accordingly, the undersigned has jurisdiction to deny the For the reasons discussed below, the Petition is Upon the consent of the parties, a magistrate judge may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case. 28 U.S.C. § 636(c)(1). Here, Petitioner is the only party to the proceeding and has consented to the jurisdiction of the undersigned U.S. Magistrate Judge. (Dkt. No. 2). Respondent has not yet been served and therefore is not yet a party to this action. See, e.g., Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) ( A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed. R. Civ. P. 4. ) (internal quotation marks and citation omitted). 3 1 DENIED for lack of jurisdiction, and, alternatively, as untimely, 2 and this action is DISMISSED WITHOUT PREJUDICE. 3 \\ 4 \\ 5 \\ 6 \\ 7 \\ 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Accordingly, all parties have consented pursuant to § 636(c)(1) and the undersigned Magistrate Judge has jurisdiction to dismiss this matter. See Wilhelm v. Rotman, 680 F.3d 1113, 1119 21 (9th Cir. 2012) (magistrate judge had jurisdiction to dismiss sua sponte prisoner s lawsuit under 42 U.S.C. § 1983 for failure to state claim because prisoner consented and was only party to action); United States v. Real Prop., 135 F.3d 1312, 1317 (9th Cir. 1998) (magistrate judge had jurisdiction to enter default judgment in in rem forfeiture action even though property owner had not consented because § 636(c)(1) requires consent only of parties and property owner, having failed to comply with applicable filing requirements, was not a party ); Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) ( The record does not contain a consent from the defendants. However, because they had not been served, they were not parties to this action at the time the magistrate entered judgment. Therefore, lack of written consent from the defendants did not deprive the magistrate judge of jurisdiction in this matter. ); see also Olivar v. Chavez, 2013 WL 4509972 at *2 (C.D. Cal. Aug. 23, 2013) (magistrate judge may dismiss habeas petition with prejudice as untimely where petitioner consented and respondent had not been served); Patrick Collins, Inc. v. Doe, 2011 U.S. Dist. LEXIS 125671, at *4 n. 1 (N.D. Cal. Oct. 31, 2011) ( Here, Plaintiff has consented to magistrate jurisdiction and the Doe Defendants have not yet been served. Therefore, the Court finds that it has jurisdiction under 28 U.S.C. § 636(c) to decide the issues raised in the instant motion(s). ); Third World Media, LLC v. Doe, 2011 WL 4344160 at *3 (N.D. Cal. Sept. 15, 2011) ( The court does not require the consent of the defendants to dismiss an action when the defendants have not been served and therefore are not parties under 28 U.S.C. § 636(c). ); Ornelas v. De Frantz, 2000 WL 973684 at *2 n.2 (N.D. Cal. June 29, 2000) ( The court does not require the consent of defendants in order to dismiss this action because defendants have not been served, and, as a result, are not parties under the meaning of 28 U.S.C. § 636(c). ). 4 1 II. 2 PRIOR PROCEEDINGS 3 4 According to the Petition, on December 18, 1987, a Los 5 Angeles County Superior Court jury convicted Petitioner of rape 6 and 7 sections 261 and 288. 8 indicates that on January 15, 1988, the trial court sentenced 9 Petitioner to eight years in state prison on one of the counts oral copulation in violation of California (Petition at 2). Penal Code The Petition further 10 and to two years on the other count.4 11 was released from custody on parole in 1992 with respect to those 12 convictions. Petitioner states that he (Timeliness OSC Response at 1). 13 14 After his release, Petitioner was convicted again in 1995 on 15 charges relating to a separate incident that occurred in 1994. 16 In the 1995 proceedings, a Los Angeles County Superior Court jury 17 found 18 copulation 19 imprisonment in violation of Penal Code section 236, assault with 20 a 21 possession of a firearm by a felon in violation of Penal Code 22 12021(a). (Prior Petition I, Report and Recommendation, Dkt. No. 23 47 at 2). The jury further found that Petitioner personally used 24 4 25 26 27 28 Petitioner firearm in in guilty violation violation of of of four Penal Penal counts Code Code of forcible oral section 288a(c), false section 245(a)(2), and The California Appellate Courts Case Information Website indicates that the trial court case number for the 1987 conviction was Los Angeles County Superior Court Case No. A954374. (See appellatecases.courtinfo.ca.gov, Second Appellate District Case No. B032920). The Petition does not indicate whether these determinate sentences were served consecutively or concurrently. 5 1 a 2 bifurcated proceeding, the trial court found that Petitioner had 3 suffered two prior strikes and had served one prior prison 4 term. 5 consecutive 6 consecutive 7 (Id.). 8 with a firearm, and possession of a firearm counts pursuant to 9 Penal Code section 654.5 firearm in the (Id.). commission of the crimes. (Id.). In a The trial court sentenced Petitioner to four terms term of of twenty-five four years years for the to life, firearm plus a enhancement. Sentences were stayed on the false imprisonment, assault (Id.). 10 11 On direct appeal, due to the trial court s exclusion of 12 certain 13 reversed 14 possession of a firearm by a felon and remanded the case for 15 resentencing 16 prosecution declined to retry the counts that were dismissed, and 17 the trial court resentenced Petitioner on the possession of a 18 firearm by a felon count. 19 sentence, which the court of appeal again reversed and remanded 20 for resentencing. 21 five years to life indeterminate term, plus a consecutive one- 22 year 23 Petitioner 24 California courts. impeachment term the evidence, judgment on for that on the all California counts conviction. except (Id.). (Id. at 3). Court the On of Appeal count remand, for the Petitioner appealed that On remand, the trial court imposed a twenty- the prior unsuccessfully prison term appealed enhancement. that sentence (Id.). in the The Los Angeles County Superior Court, the 25 26 27 28 5 The California Appellate Courts Case Information Website indicates that the trial court case number for the 1995 conviction was Los Angeles County Superior Court Case No. TA031000. (See appellatecases.courtinfo.ca.gov, Second Appellate District Case No. B093266). 6 1 California 2 summarily denied Petitioner s habeas petitions. Court of Appeal and the California Supreme Court (Id.). 3 4 Petitioner filed Prior Petition I in this Court challenging 5 his 1995 conviction and sentence on March 29, 2001. 6 Petition I, Report and Recommendation, Dkt. No. 47 at 2). 7 July 8 Recommendation recommending that Prior Petition I be dismissed on 9 the merits with prejudice. 29, 2003, the Magistrate Judge issued (See id. at 2, 32). (See Prior a Report On and The Court found, 10 inter 11 under California s Three Strikes Law because his 1987 conviction 12 for rape and oral copulation qualified as two separate strike 13 offenses under California law. 14 Judge accepted the Magistrate Judge s Report and Recommendation 15 and dismissed Prior Petition I on February 17, 2004. 16 Dkt. Nos. 59 & 60). 17 of 18 appealability. alia, Appeals that Petitioner s denied sentence was properly (See id. at 11-13). enhanced The District (See id., On August 24, 2004, the Ninth Circuit Court Petitioner s request for a certificate of (See id., Dkt. No. 70 at 1). 19 20 Petitioner filed Prior Petition II, which also challenged 21 his 1995 conviction and sentence, in this Court on May 16, 2007. 22 (See Prior Petition II, Order Dismissing Petition for Lack of 23 Jurisdiction, Dkt. No. 4 at 1). 24 Prior 25 challenging [P]etitioner s conviction and sentence in Los Angeles 26 County Superior Court Case No. TA031000 [and] [t]here [wa]s no 27 indication 28 permission from the Ninth Circuit Court of Appeals to file a Petition in II the was record a The District Judge found that second that 7 or successive [P]etitioner ha[d] petition obtained 1 second or successive petition. 2 District Judge dismissed Prior Petition II on May 29, 2007 for 3 lack 4 petition. 5 denied Petitioner s request for a certificate of appealability. 6 (See id., Dkt. No. 19 at 1). 7 instant Petition on June 3, 2013. of jurisdiction to (See id. at 4). (Id. at 3). consider Accordingly, the Petitioner s successive On May 29, 2008, the Ninth Circuit Petitioner constructively filed the 8 9 III. 10 PETITIONER S CLAIM 11 12 13 Petitioner s sole claim for federal habeas relief reads in its entirety: 14 15 [P]etitioner s due process and equal protection rights 16 were 17 CONST ART 1 § 7. 18 violated 19 uniformity of decision, and settle question of law, and 20 when courts lacke [sic] jurisdiction CAL RULES OF COURT 21 8.500(b) 22 petition for review in regards to coram vobis renamed a 23 habeas which also was a violation [sic]. 24 PAGE: violated, its which U.S. own was Const V and XIV AMENDMENT; CAL The california [sic] supreme court standard set forth of by review, to petitioner secure in his CONTINUE NEXT 25 26 (Petition at 5).6 27 6 28 The next page of the Petition is a copy of a California Supreme Court Order dated March 13, 2013 denying without comment 8 1 IV. 2 DISCUSSION 3 4 The Antiterrorism and Effective Death Penalty Act of 1996 5 ( AEDPA ) 6 filed it after AEDPA s effective date of April 24, 1996. 7 v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 8 (1997); see also Penry v. Johnson, 532 U.S. 782, 792, 121 S. Ct. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 applies to the instant Petition because Petitioner Lindh or citation to authority Petitioner s petition for review and request for judicial notice. (Petition at 5a). The Petition contains no other claims, material factual allegations, or exhibits. The claims at issue in the Petition are only marginally clarified by the arguments presented in Petitioner s largely incoherent OSC Responses. On the one hand, Petitioner argues that he is challenging the legality of his detention under a [sic] invalid use of his 1987 prior, which appears to indicate that he is challenging his 1995 conviction and sentence, which was enhanced by his 1987 conviction. (Juris. OSC Response at 2) (emphasis added). Specifically, Petitioner appears to contend that his 1995 sentence was improperly enhanced because the court erroneously treated his 1987 conviction as two separate strikes, not one. (Id.). An argument based on how the court in 1995 treated Petitioner s 1987 conviction when it imposed sentence is logically an attack on the 1995 sentence, not the 1987 conviction. In addition, the Petition indicates that Petitioner filed a habeas petition in this matter in the Compton Superior Court relating to case number TA031000, which was the trial court case number for the 1995 proceedings. (See Petition at 3). Accordingly, it appears likely that Petitioner is actually attempting to challenge his 1995 conviction and sentence, for which he is currently incarcerated. On the other hand, Petitioner argues that the current Petition is not successive because Prior Petition I and Prior Petition II challenged his 1995 conviction and sentence, whereas [P]etitioner s 1987 conviction [for rape and oral copulation] is not a possession of a firearm [sic], which suggests that Petitioner may somehow be attempting to attack his 1987 conviction, although Plaintiff does not explain what the basis for such a challenge might be. (Id. at 3). 9 1 1910, 150 L. Ed. 2d 9 (2001) ( Because [petitioner] filed his 2 federal 3 provisions of that law govern the scope of our review. ).7 4 the reasons stated below, whether the Petition is construed as a 5 direct 6 challenge to his 1995 conviction and sentence, which was enhanced 7 by the 1987 conviction, the Court lacks jurisdiction to hear 8 Petitioner s claims. habeas attack petition on after Petitioner s the 1987 enactment of conviction [AEDPA], or an the For indirect 9 10 A. To The Extent That Petitioner Is Attempting To Challenge His 11 1987 12 Petitioner Does Not Appear To Be In Custody Pursuant To 13 That Conviction And, Alternatively, Because Any Such Claim 14 Is Untimely Conviction, The Court Lacks Jurisdiction Because 15 16 28 U.S.C. § 2254 empowers the court to entertain an 17 application for a writ of habeas corpus in behalf of a person in 18 custody pursuant to the judgment of a State court only on the 19 ground that he is in custody in violation of the laws of the 20 Constitution or laws or treaties of the United States. 21 7 22 23 24 25 26 27 28 28 The Ninth Circuit has specifically held that AEDPA s provisions governing second or successive petitions apply to a new petition filed after the date of AEDPA s enactment, even if the original petition was filed before. Cooper v. Calderon, 274 F.3d 1270, 1272 (9th Cir. 2001) (citing United States v. Villa Gonzalez, 208 F.3d 1160, 1163 64 (9th Cir. 2000)). Similarly, AEDPA s one-year statute of limitations applies to petitions filed after AEDPA s effective date, even if the petitioner s conviction became final before AEDPA s implementation. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001); but see Jackson v. Brown, 513 F.3d 1057, 1069 (9th Cir. 2008) (general AEDPA provisions do not apply where federal habeas petition was filed before AEDPA s effective date). 10 1 U.S.C. § 2254(a) (emphasis added). 2 December 18, 1987 -- nearly twenty-six years ago -- and sentenced 3 on January 15, 1988 to determinate state prison terms of eight 4 years on one count and two years on another count. 5 at 6 (Timeliness OSC Response at 1). 7 of parole . . . is not part of the offender s prison term; it 8 follows the prison term, which ends on the day of release on 9 parole. 2). Petitioner states that Petitioner was convicted on he was (See Petition paroled in 1992. Under California law, a period Thus, by definition, a parolee who commits an [offense] 10 while 11 prescribed by law for the underlying [prior offense] and the 12 criminal conduct that produced it. 13 4th 577, 590, 25 Cal. Rptr. 3d 761 (2005). on parole has already served the full prison term People v. Guzman, 35 Cal. 14 15 Accordingly, it is clear that Petitioner is currently 16 incarcerated pursuant to his 1995 conviction for possession of a 17 firearm by a felon, not his 1987 conviction for rape and oral 18 copulation. 19 otherwise. 20 be in custody for purposes of habeas jurisdiction based on his 21 current incarceration, the Court lacks jurisdiction to entertain 22 a direct challenge to his 1987 conviction because Petitioner is 23 not presently incarcerated pursuant to that conviction. 24 e.g., Maleng v. Cook, 490 U.S. 488, 490-91, 109 S. Ct. 1923, 104 25 L. Ed. 2d 540 (1989); Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 26 2010). 27 jurisdiction. Petitioner does not seriously attempt to argue Therefore, to the extent that Petitioner is deemed to See, To that extent, this action must be dismissed for lack of 28 11 1 Petitioner nonetheless argues that he is still technically 2 in custody pursuant to his 1987 conviction for purposes of 3 habeas jurisdiction because his parole in that case has never 4 been discharged. 5 has held that [p]hysical custody is not indispensable to confer 6 [habeas] jurisdiction, Bailey, 599 F.3d at 979, and a parole 7 term satisfies the in custody requirement. 8 Brown, 724 F.3d 1255 (9th Cir. 2013) ( A state parolee is in 9 custody for purposes of the federal habeas statute . . . . ). (Juris. OSC Response at 1). The Ninth Circuit See Thornton v. 10 However, 11 representation 12 conviction, which Petitioner fails to support with any evidence, 13 any claim pertaining to Petitioner s 1987 conviction must still 14 be dismissed as untimely. even assuming that he the is accuracy still on of parole Petitioner s from his 1987 15 16 Under AEDPA, state prisoners have one year to file their 17 federal habeas petitions. 18 year statute of limitations generally runs from the date on which 19 a prisoner s conviction becomes final on the conclusion of direct 20 review (or the expiration of the time for seeking such review), 21 or, 22 implementation of AEDPA. 23 F.3d 24 convictions finalized before AEDPA s enactment date . . . ended 25 on 26 (emphasis added). 27 \\ 28 \\ for at April pre-AEDPA 1246 24, convictions, ( AEDPA s 1997 28 U.S.C. § 2244(d)(1). in from the AEDPA s one- April 24, 1996 Id. § 2244(d)(1)(A); Patterson, 251 one-year the grace absence 12 period of for statutory challenging tolling. ) 1 Petitioner was convicted in December 1987, sentenced in 2 January 3 (Prior Petition I, Report and Recommendation, Dkt. No. 47 at 2; 4 Timeliness OSC Response at 1). 5 OSC, Petitioner does not even attempt to argue that statutory or 6 equitable tolling can render the June 3, 2013 filing of the 7 instant Petition 8 period. (See generally id. at 1-4). 9 that AEDPA does not apply to his 1987 conviction because he was 10 convicted and sentenced -- and indeed, served his entire prison 11 term on that conviction -- prior to AEDPA s enactment. 12 1-2). 1988, and released timely from custody on parole in 1992. In his response to the Timeliness under AEDPA s one-year limitations Rather, Petitioner argues (Id. at 13 14 However, even assuming, as Petitioner asserts, that 15 Petitioner s 16 effective on April 24, 1996, the statute of limitations began to 17 run on the date of AEDPA s enactment and expired one year later, 18 on April 24, 1997. 19 when Petitioner filed the instant Petition on June 3, 2013, it 20 appears to have been untimely by 16 years, 1 month and 10 days, 21 absent tolling. conviction became final before Patterson, 251 F.3d at 1246. AEDPA became Accordingly, 22 23 AEDPA provides a tolling provision that suspends the 24 limitations period for the time during which a properly-filed 25 application for post-conviction or other collateral review is 26 pending in state court. 27 tolling provision does not apply if a state habeas petition is 28 filed after the limitations period has already expired. 28 U.S.C. § 2244(d)(2). 13 However, the See, 1 e.g., Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) 2 (holding that 28 U.S.C. § 2244(d) does not permit reinitiation 3 of the limitations period that has [already] ended ); Jiminez v. 4 Rice, 276 F.3d 478, 482 (9th Cir. 2001) (stating that filing a 5 state habeas petition after the AEDPA limitations period expired 6 resulted 7 [petitioner s] 8 indicates that Petitioner filed state habeas petitions in the Los 9 Angeles in an absolute state County claims Superior time were Court bar to refiling exhausted ). (denied August The 3, after Petition 2000), the 10 California Court of Appeal (denied August 24, 2000), and the 11 California Supreme Court (denied January 30, 2001). 12 3-5). 13 challenged the fact of Petitioner s 1987 conviction as opposed to 14 the calculation of his 1995 sentence. 15 petitions were almost certainly all filed after the statute of 16 limitations had run on Petitioner s claims on April 24, 1997, 17 they do not appear to entitle Petitioner to statutory tolling. It is questionable whether these (Petition at petitions actually Regardless, because these 18 19 However, even if the Court were to assume that Petitioner s 20 challenge 21 statutory tolling until January 30, 2001, when the state supreme 22 court 23 still be untimely. 24 scenario, the statute of limitations would have begun to run on 25 January 31, 2001, the day after the state supreme court denied 26 the habeas petition, and would have expired on January 31, 2002. 27 Petitioner did not file the Petition until June 3, 2013, i.e., 28 eleven years, four months, and three days after the statute of to denied his his 1987 habeas conviction petition, was the somehow instant eligible Petition for would Indeed, under that generous (and improbable) 14 1 limitations would have expired. 2 cannot render the instant Petition timely. Accordingly, statutory tolling 3 4 Petitioner has failed to demonstrate that he is entitled to 5 statutory 6 entitlement to equitable tolling, despite the Court s explicit 7 warning that he bears the burden of establishing an entitlement 8 to tolling. 9 2002); (see also Timeliness OSC at 7). tolling and has offered no argument as to his See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. Nor can the Court discern 10 from the record any reason why Petitioner would be entitled to 11 statutory or equitable tolling. 12 is technically in custody because the parole term on his 1987 13 conviction has not been discharged, a fact it is unnecessary for 14 the Court to decide, any claim relating to that conviction is 15 untimely and must be dismissed. Accordingly, even if Petitioner 16 17 B. To The Extent That Petitioner Is Attempting To Challenge His 18 1995 Conviction And Sentence, The Court Lacks Jurisdiction 19 Because The Petition Is Successive 20 21 Even though the Petition purports to challenge Petitioner s 22 1987 conviction, (see Petition at 2), and does not specifically 23 mention Petitioner s 1995 conviction and sentence, it appears 24 more 25 attempting to challenge his 1995 conviction and sentence, for 26 which he is currently incarcerated. 27 indicated 28 invalid use of his 1987 prior conviction, which is an attack on likely in -- his and OSC logical -- Responses 15 that Plaintiff is actually As noted earlier, Petitioner that he is challenging the 1 the way his 1995 sentence was determined and imposed. 2 even 3 Petitioner s 4 jurisdiction to hear Plaintiff s claim. construing the 1995 Petition liberally conviction and as a sentence, However, challenge the Court to lacks 5 6 As an initial matter, to the extent that Petitioner seeks to 7 challenge the enhancement of his current sentence on the ground 8 that the prior strikes stemming from his 1987 conviction were 9 unconstitutionally obtained, any such challenge is barred by the 10 Supreme Court s decision in Lackawanna Cnty. Dist. Attorney v. 11 Cross, 532 U.S. 394, 121 S. Ct. 1567, 149 L. Ed. 2d 608 (2001). 12 According to the Lackawanna decision, once a state conviction is 13 no longer open to direct or collateral attack in its own right 14 . . . , the conviction may be regarded as conclusively valid. 15 Id. at 403. 16 a criminal sentence, the defendant generally may not challenge 17 the enhanced sentence through a petition under § 2254 on the 18 ground 19 obtained. 20 Supp. 2d 1005, 1045-46 (C.D. Cal. 2010). 21 conviction 22 Accordingly, Petitioner cannot challenge the enhanced sentence he 23 is currently serving by attacking the lawfulness of his prior 24 convictions.8 25 8 26 27 28 Thus, [i]f that conviction is later used to enhance that the prior conviction was unconstitutionally Id. at 403-04; see also Moore v. Chrones, 687 F. is no longer open to Here, Petitioner s 1987 attack in its own right. The only explicit exception to the Lackawanna bar is for [claims under Gideon v. Wainright, 372 U.S. 335, 83 S. Ct. 792, 9. L. Ed. 2d 799 (1963)], which require a total denial of the right to counsel. Moore, 687 F. Supp. 2d at 1045-46 (footnote omitted) (citing Lackawanna, 532 U.S. at 404). Here, Petitioner does not argue -- and there is no indication that -- he was 16 1 More fundamentally, to the extent that Petitioner is 2 attempting 3 conviction and sentence on this or any other ground, the Petition 4 is 5 generally prohibits successive petitions: plainly by the instant successive. Petition Courts to have challenge recognized his that 1995 AEDPA 6 7 AEDPA greatly restricts the power of federal courts to 8 award relief to state prisoners who file second or 9 successive habeas corpus applications. If the 10 prisoner asserts a claim that he has already presented 11 in a previous federal habeas petition, the claim must 12 be 13 asserts a claim that was not presented in a previous 14 petition, the claim must be dismissed unless it falls 15 within one of two narrow exceptions. 16 exceptions 17 discovered facts that call into question the accuracy dismissed in is all for cases. claims And if the prisoner One of these predicated on newly 18 19 20 21 22 23 24 25 26 27 28 denied the right to counsel. (See generally Juris. OSC Response at 1-3). Thus, this exception to the Lackawanna bar appears inapplicable to Petitioner s case. The Court notes that the Ninth Circuit has held that the Lackawanna bar does not prevent a petitioner from challenging an expired conviction where a state court, without justification, refused to rule on a constitutional claim that was properly presented to it. See Dubrin v. People of California, 720 F.3d 1095, 1096-1100 (9th Cir. 2013). Nothing in the record suggests that the California courts declined to address Petitioner s constitutional claims and, accordingly, Dubrin is inapposite here. Regardless, even if an exception to the Lackawanna bar applied, which it does not, Petitioner would still be required to obtain permission from the Ninth Circuit to file a successive petition before this Court may exercise jurisdiction, as explained below. See Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). 17 1 of a guilty verdict. 2 relying on new rules of constitutional law. The other is for certain claims 3 4 Tyler v. Cain, 533 U.S. 656, 661, 121 S. Ct. 2478, 150 L. Ed. 2d 5 632 (2001) (citations omitted); see also Pizzuto v. Blades, 673 6 F.3d 1003, 1007 (9th Cir. 2012). 7 8 Here, 9 conviction construed and as sentence, a challenge the instant to Petitioner s Petition is 1995 successive 10 because it challenges the same 1995 conviction and sentence that 11 Petitioner challenged in Prior Petition I and Prior Petition II. 12 See, e.g., Burton v. Stewart, 549 U.S. 147, 153, 127 S. Ct. 793, 13 166 L. Ed. 2d 628 (2007) (a petition is successive where it 14 challenges the same custody imposed by the same judgment of a 15 state court as a prior petition). 16 permission from the U.S. Court of Appeals for the Ninth Circuit 17 before 18 § 2244(b)(3)(A) 19 permitted by this section is filed in the district court, the 20 applicant shall move in the appropriate court of appeals for an 21 order 22 application. ); see also Woods, 525 F.3d at 888 ( Even if a 23 petitioner can demonstrate that he qualifies for one of these 24 exceptions, he must seek authorization from the court of appeals 25 before filing his new petition with the district court. ). the instant Petition ( Before authorizing the a can second district Thus, Petitioner must obtain proceed. or See successive court to 28 U.S.C. application consider the 26 27 Petitioner has not shown that he received permission from 28 the Ninth Circuit to file a successive petition or even requested 18 1 it. 2 Feb. 9, 2010) ( [I]t is Petitioner s burden to show that he 3 sought and received permission from the Court of Appeals to file 4 a second or successive Section 2254 habeas petition in this Court 5 . . . . ); Ocadio v. Ives, 2009 WL 4157652 at *1 (E.D. Cal. 6 Nov.19, 7 second or successive and petitioner has not demonstrated that the 8 Ninth Circuit has granted him leave to file it in this court ). 9 Furthermore, the Court s review of the docket does not indicate 10 that Petitioner has either requested or received permission from 11 the Ninth Circuit to file a successive petition. 12 this 13 without prejudice to refiling when and if Petitioner obtains the 14 necessary permission. 15 [the petitioner] twice brought claims contesting the same custody 16 imposed by the same judgment of a state court. 17 under AEDPA, he was required to receive authorization from the 18 Court of Appeals before filing his second challenge. 19 did not do so, the District Court was without jurisdiction to 20 entertain it. ). See, e.g., Goins v. Beard, 2010 WL 545891 at *5 (W.D. Pa. 2009) action (recommending must be dismissal dismissed for where lack of the petition is Accordingly, jurisdiction, but See Burton, 549 U.S. at 153 ( In short, As a result, Because he 21 22 C. Any Further Frivolous Filings That Ignore This Court s Prior 23 Rulings May Result In Sanctions Or A Recommendation That 24 Petitioner Be Deemed A Vexatious Litigant 25 26 Including the instant Petition, Petitioner has now brought 27 three 28 sentence to this Court, each time with the same result. separate petitions challenging 19 the same conviction and The 1 Court has repeatedly explained that it does not have jurisdiction 2 to hear Petitioner s claims. 3 the Court s rulings. Therefore, the Court advises Petitioner 4 that to 5 sentence, or the 1987 conviction that was used to enhance his 6 1995 sentence, in this Court in any future frivolous filings that 7 ignore the Court s prior rulings, the Court may impose sanctions 8 or recommend that Petitioner be deemed a vexatious litigant. if he attempts Petitioner has refused to accept challenge his 1995 conviction and 9 10 V. 11 CONCLUSION 12 13 For the foregoing reasons, IT IS ORDERED that: (1) the 14 Petition is DENIED; and (2) Judgment shall be entered dismissing 15 this action without prejudice. 16 17 DATED: November 21, 2013 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 20

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