Raymond M Velasquez v. Robert A Horel
Filing
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ORDER DISMISSING PETITION AS SECOND OR SUCCESSIVE AND DENYING A CERTIFICATEOF APPEALABILITY by Judge S. James Otero, re: Petition for Writ of Habeas Corpus (2254), 1 . (mz)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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RAYMOND M. VELASQUEZ,
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Petitioner,
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v.
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ROBERT A. HOREL, WARDEN,
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Respondent.
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___________________________________)
NO. SACV 12-770-SJO (MAN)
ORDER DISMISSING PETITION
AS SECOND OR SUCCESSIVE
AND DENYING A CERTIFICATE
OF APPEALABILITY
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Petitioner, a California state prisoner, filed a 28 U.S.C. § 2254
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habeas petition on May 11, 2012 (“Petition”).
The Petition is the
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second habeas corpus petition filed by Petitioner in this Court stemming
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from his 1997 state court conviction and related 1998 sentence.
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Under the Rules Governing Section 2254 Cases in the United States
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District Courts, a habeas petition filed by a prisoner in state custody
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“must” be summarily dismissed “[i]f it plainly appears from the petition
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and any attached exhibits that the petitioner is not entitled to relief
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in the district court. . . .”
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reasons set forth below, the Petition must be, and is, DISMISSED as
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second or successive, pursuant to 28 U.S.C. § 2244(b).
Rule 4, 28 U.S.C. foll. § 2254.
For the
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BACKGROUND
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On August 17, 2000, Petitioner filed a Section 2254 habeas petition
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in
the
United
States
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California,
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assigned Case No. CV 00-9548-AHM (EE) (the “Prior Action”).
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petition in the Prior Action challenged the same state court conviction
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and sentence at issue here.
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challenged the validity of his Three Strikes sentence, arguing that: he
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had received dual punishment; and the portion of his sentence based on
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his Count II conviction, for which he received a Three Strikes sentence,
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should have been stayed.1 On March 16, 2001, Judgment was entered in the
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Prior Action, dismissing the petition.
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dockets for the Ninth Circuit show that Petitioner has not
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application
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successive petition.
which
in
District
subsequently
the
Ninth
Court
was
for
the
Eastern
transferred
to
District
this
Court
of
and
The
Petitioner raised a single claim that
Circuit
Petitioner did not appeal.
for
leave
to
file
a
The
filed an
second
or
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The instant Petition again attacks Petitioner’s 1998 sentence.
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Petitioner contends that his present sentence is invalid based on the
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following grounds:
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not properly treated as a “strike” prior conviction, because doing so
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violated the terms of his 1990 plea bargain; his plea bargain in the
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1990 case was statutorily barred, and thus, the 1990 conviction is
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illegal and invalid; his 1982 and 1990 prior “strike” convictions are
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constitutionally invalid for various reasons, including that he did not
his 1990 conviction for voluntary manslaughter was
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Pursuant to Rule 201 of the Federal Rules of Evidence, the
Court takes judicial notice of this district’s case files and records as
well as the dockets for the United States Court of Appeals for the Ninth
Circuit available through the PACER system.
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receive adequate advice and warnings before he pleaded guilty in both
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cases and his counsel provided ineffective assistance; the use of
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Petitioner’s 1990 conviction as a “strike” retroactively, and thus
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impermissibly, increased his punishment for the 1990 conviction; and the
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Three Strikes provisions should not have been applied to his “strike”
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convictions, because they were incurred prior to the effective date of
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the Three Strikes law.
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DISCUSSION
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State habeas petitioners generally may file only one federal habeas
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petition challenging a particular state conviction and/or sentence.
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See, e.g., 28 U.S.C. § 2244(b)(1) (courts must dismiss a claim presented
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in a second or successive petition when that claim was presented in a
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prior petition) and § 2244(b)(2) (with several exceptions not applicable
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here, courts must dismiss a claim presented in a second or successive
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petition when that claim was not presented in a prior petition).
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habeas petition is second or successive . . . if it raises claims that
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were or could have been adjudicated on the merits” in an earlier Section
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2254 petition.
“A
McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).
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In those instances when Section 2244(b) provides a basis for
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pursuing a second or successive Section 2254 habeas petition, state
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habeas petitioners seeking relief in this district court must first
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obtain authorization from the Ninth Circuit before filing any such
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second or successive petition.
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Circuit “may authorize the filing of the second or successive [petition]
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only if it presents a claim not previously raised that satisfies one of
28 U.S.C. § 2244(b)(3).
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The Ninth
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the two grounds articulated in § 2242(b)(2).”
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Burton v. Stewart, 549
U.S. 147, 153, 127 S. Ct. 793, 796 (2007).
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By the Prior Action, Petitioner sought Section 2254 relief based on
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the same state court conviction and sentence at issue here.
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Action petition was dismissed on the ground that Petitioner had not
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established his entitlement to federal habeas relief, because he did not
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claim to be in custody in violation of federal law or the United States
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Constitution and had not shown that the state court’s denial of his
was
contrary
to
or
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claim
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established federal law within the meaning of 28 U.S.C. § 2254(d)(1).
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(See Prior Action docket, No. 11 at 2-3.)
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Judgment dismissing the Prior Action petition did not specify whether
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the case was dismissed with or without prejudice (see id., Nos. 12-13),
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pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, the
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involuntary dismissal of the Prior Petition action must be construed to
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constitute
an
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prejudice.
See Fed. R. Civ. P. 41(b); Stewart v. U.S. Bancorp, 297 F.3d
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953, 956-57 (9th Cir. 2002); Moon v. Dulles, 237 F.2d 241, 242 (9th Cir.
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1956).
adjudication
an
on
unreasonable
the
merits
application
The Prior
of
clearly
Although the Order and
and
to
have
been
with
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Critically, Petitioner’s present claims are based on events that
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occurred at and/or predated his 1998 sentencing; they do not rest on
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newly-discovered evidence or a new and retroactively-applicable rule of
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constitutional law, as is required by 28 U.S.C. § 2244(b)(2)(A)-(B).
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Accordingly, the current Petition is second or successive within the
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meaning of Section 2244(b).2
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Petitioner has not sought or obtained permission to bring a second
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or successive petition. Thus, this Court lacks jurisdiction to consider
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the Petition.
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127 S. Ct. at 799 (district court lacks jurisdiction to consider the
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merits of a second or successive petition absent prior authorization
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from the circuit court). Accordingly, IT IS ORDERED that: the Petition
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is DISMISSED; and Judgment shall be entered dismissing this action
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28 U.S.C. § 2244(b); see also Burton, 549 U.S. at 157,
without prejudice.
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In addition, pursuant to Rule 11(a) of the Rules Governing Section
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2254
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considered whether a certificate of appealability is warranted in this
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case.
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85,
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certificate of appealability is unwarranted, and thus, a certificate of
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appealability is DENIED.
Cases
in
the
United
States
District
Courts,
the
Court
has
See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-
120
S.
Ct.
1595,
1604
(2000).
The
Court
concludes
that
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DATED: May 30, 2012.
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S. JAMES OTERO
UNITED STATES DISTRICT JUDGE
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PRESENTED BY:
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MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE
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The instant Petition also appears to be grossly untimely.
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a
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