Leon S. Brown Jr. v. C. Noll, No. 5:2009cv02103 - Document 7 (C.D. Cal. 2009)

Court Description: OPINION AND ORDERON PETITION FOR WRIT OF HABEAS CORUS by Judge A. Howard Matz. 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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 10 11 LEON SHELBY BROWN, JR., 12 13 14 15 16 Petitioner, v. C. NOLL, Warden, et al. Respondents. ) ) ) ) ) ) ) ) ) ) No. EDCV 09-2103-AHM (AGR) OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS 17 On October 20, 2009, Petitioner Leon Shelby Brown, Jr., proceeding pro se, filed 18 a Petition for Writ of Habeas Corpus By a Person in State Custody ( Petition ) pursuant 19 to 28 U.S.C. § 2254 in the Southern District of California. By order filed November 12, 20 2009, the action was transferred to the Central District of California. 21 I. 22 PROCEDURAL HISTORY 23 Pursuant to Fed. R. Evid. 201, this Court takes judicial notice of the records in a 24 prior federal habeas corpus action brought by Petitioner: Leon Shelby Brown, Jr. v. G.J. 25 Giurbino, EDCV 01-785 AHM (JWJ) ( Brown I ). 26 According to the Petition, a jury in 1998 found Petitioner guilty of second-degree 27 commercial burglary and petty theft with a prior. (Petition at 1-2; Brown I, Report and 28 Recommendation (R&R) at 1.) The trial court sentenced Petitioner to state prison for 25 1 years to life. (Petition at 1; Brown I, R&R at 2.) On September 30, 1999, the California 2 Court of Appeal affirmed the conviction and remanded for resentencing.1 (Id.) On 3 December 21, 1999, the California Supreme Court denied the petition for review. 4 (Petition at 2; Brown I, R&R at 2.) On August 29, 2001, the California Supreme Court 5 denied a state habeas petition. (Id. at 2.) 6 In Brown I, Petitioner filed a petition for writ of habeas corpus by a person in state 7 custody on October 16, 2001. (Dkt. No. 1.) Petitioner challenged his conviction and 8 sentence based on four grounds: (1) trial judge failed to exercise his discretion to strike 9 priors and Petitioner s sentence was cruel and unusual in violation of the Eighth 10 Amendment; (2) application of the Three Strikes law to pre-1994 priors violated the Ex 11 Post Facto Clause; and (3-4) ineffective assistance of trial counsel. (Brown 1, R&R at 12 2-3.) On February 18, 2004, this Court entered an Order Adopting Report and 13 Recommendation of United States Magistrate Judge and a Judgment denying the 14 petition with prejudice. (Dkt. Nos. 29-30.) On June 14, 2004, Petitioner filed a Notice of 15 Appeal. (Dkt. No. 32.) On June 21, 2004, this Court denied Petitioner s request for a 16 certificate of appealability. (Dkt. No. 34.) On September 14, 2004, the Ninth Circuit 17 denied Petitioner s request for certificate of appealability. (Dkt. No. 38.) 18 19 On December 26, 2006, the Ninth Circuit denied Petitioner s application for authorization to file a second or successive petition. (Dkt. No. 40.) 20 II. 21 DISCUSSION 22 The Petition was filed after enactment of the Antiterrorism and Effective Death 23 Penalty Act of 1996 ( AEDPA ). Therefore, the Court applies the AEDPA in reviewing 24 the petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 25 (1997). 26 27 1 28 On remand, the trial court resentenced Petitioner to 25 years to life and struck a oneyear enhancement. (Brown I, R&R at 2.) 2 1 The AEDPA provides, in pertinent part, that: Before a second or successive 2 application permitted by this section is filed in the district court, the applicant shall move 3 in the appropriate court of appeals for an order authorizing the district court to consider 4 the application. 28 U.S.C. § 2244(b)(3)(A). A district court does not have jurisdiction to 5 consider a second or successive petition absent authorization from the Ninth Circuit. 6 Burton v. Stewart, 549 U.S. 147, 152, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007); Cooper 7 v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) ( When the AEDPA is in play, the 8 district court may not, in the absence of proper authorization from the court of appeals, 9 consider a second or successive habeas application. ) (citation omitted and quotation 10 marks omitted). 11 Here, the Petition is a second or successive petition that challenges the same 12 conviction and sentence imposed by the same judgment of the state court as in Brown 13 I. (Petition at 1-2 & Attachment.) The Petition seeks to vacate his unauthorized 14 sentence. (Petition, Attachment at 1.) Petitioner argues that the trial court should 15 strike a 1989 prior as constitutionally invalid and/or in furtherance of justice. (Id. at 5-7.) 16 The Petition is considered a successive petition because the district court entered 17 judgment and denied the petition on the merits in Brown I See Beaty v. Schriro, 554 18 F.3d 780 (9th Cir.), cert. denied, 175 L. Ed. 2d 50 (2009). The Ninth Circuit has 19 previously denied an application for authorization to file a second or successive petition. 20 (Brown I, Dkt. No. 40.) 21 It plainly appears from the face of the Petition that Petitioner has not received 22 authorization from the Ninth Circuit Court of Appeals to file a second or successive 23 petition. This Court must, therefore, dismiss the Petition as a successive petition for 24 which it lacks jurisdiction under 28 U.S.C. § 2244(b)(3). See Burton, 549 U.S. at 152. 25 /// 26 /// 27 /// 28 3 1 Rule 4 of the Rules Governing Section 2254 Cases in the United States Courts 2 provides that [i]f it plainly appears from the face of the petition and any attached 3 exhibits that the petitioner is not entitled to relief in the district court, the judge must 4 dismiss the petition and direct the clerk to notify the petitioner. Here, summary 5 dismissal is warranted. 6 7 8 ORDER IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the habeas petition and action for lack of subject matter jurisdiction. 9 10 Date: November 19, 2009 11 12 13 _____________________________ A. HOWARD MATZ UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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