Russell Wyatt Pierce v. James D Hartley, No. 2:2011cv09058 - Document 3 (C.D. Cal. 2011)

Court Description: OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS by Judge John A Kronstadt. On November 1, 2011, Petitioner Russell Wyatt Pierce, proceeding pro se, filed a Petition for Writ of Habeas Corpus By a Person in State Custody (Petition) pursuant to 28 U.S.C. § 2254. IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. (See Order for detail.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RUSSELL WYATT PIERCE, 12 Petitioner, 13 14 v. JAMES D. HARTLEY, Warden, 15 Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 11-9058-JAK (AGR) OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS On November 1, 2011, Petitioner Russell Wyatt Pierce, proceeding pro se, 18 19 filed a Petition for Writ of Habeas Corpus By a Person in State Custody 20 ( Petition ) pursuant to 28 U.S.C. § 2254. The Petition challenges his conviction 21 in Los Angeles County Superior Court in 1996. (Petition at 2.) 22 I. 23 PROCEDURAL BACKGROUND 24 Pursuant to Fed. R. Evid. 201, this Court takes judicial notice of the records 25 in a prior federal habeas corpus action brought by Petitioner in the Central District 26 of California: Pierce v. Warden Mendoza-Powers, CV 05-5277-SGL (AGR) 27 ( Pierce I ); (see also Petition at 1.) 28 /// On October 1, 1996, Petitioner pled no contest to forcible rape, attempted 1 2 forcible sodomy, and three counts of residential burglary and was sentenced to 3 27 years in state prison. (Petition at 2); see also Pierce I, Dkt. No. 58 ( R&R ) at 4 2. Petitioner did not appeal. (Petition at 2); R&R at 2. Beginning in January 5 2003, Petitioner filed habeas petitions in the California courts, all of which were 6 denied; the last denial before Pierce I was on August 1, 2005. R&R at 2-3. In Pierce I, on July 20, 2005, Petitioner filed a Petition for Writ of Habeas 7 8 Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. On May 22, 9 2007, the district court adopted the R&R and entered Judgment denying the 10 petition with prejudice. Pierce I, Dkt. Nos. 58-59. On June 11, 2007, Petitioner 11 filed a Notice of Appeal. Id., Dkt. No. 60. On March 11, 2010, the Ninth Circuit 12 affirmed the judgment. Ninth Circuit Case No. 07-55920, Dkt. No. 59-1. On December 28, 2010, Petitioner constructively filed a habeas petition in 13 14 the Superior Court, which was denied on February 11, 2011 as untimely. 15 (Petition at 12.) On March 15, 2011, Petitioner filed a habeas petition in the 16 California Court of Appeal, which was denied on April 5, 2011 as untimely. (Id. at 17 12-13.) On April 26, 2011, Petitioner constructively filed a habeas petition in the 18 California Supreme Court, which was denied on October 12, 2011 with citations 19 indicating untimeliness. (Id. at 13-14 & Ex. 24 (Dkt. No. 1-2 at 85).) Earlier, on April 22, 2011, Petitioner filed an application in the Ninth Circuit 20 21 to file a second or successive petition. See Pierce v. Hartley, Case No. 11- 22 71143, Dkt. No. 1. On July 7, 2011, the Ninth Circuit denied the application. Id., 23 Dkt. No. 6. The Petition challenges the same conviction and sentence as Pierce I. 24 25 (Petition at 2.) 26 /// 27 /// 28 /// 2 1 II. 2 DISCUSSION 3 The Petition was filed after enactment of the Antiterrorism and Effective 4 Death Penalty Act of 1996 ( AEDPA ). Therefore, the Court applies the AEDPA 5 in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 6 138 L. Ed. 2d 481 (1997). 7 The AEDPA provides, in pertinent part: Before a second or successive 8 application permitted by this section is filed in the district court, the applicant shall 9 move in the appropriate court of appeals for an order authorizing the district court 10 to consider the application. 28 U.S.C. § 2244(b)(3)(A). A district court does not 11 have jurisdiction to consider a second or successive petition absent 12 authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152, 127 S. 13 Ct. 793, 166 L. Ed. 2d 628 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 14 Cir. 2001) ( When the AEDPA is in play, the district court may not, in the absence 15 of proper authorization from the court of appeals, consider a second or 16 successive habeas application. ) (citation and quotation marks omitted). 17 Here, the Petition is a second or successive petition that challenges the 18 same conviction and sentence imposed by the same judgment of the state court 19 as in Pierce I. 20 The Ninth Circuit denied Petitioner s application to file a second or 21 successive petition. This Court must, therefore, dismiss the Petition as a 22 successive petition for which it lacks jurisdiction under 28 U.S.C. § 2244(b)(3). 23 See Burton, 549 U.S. at 152. 24 Rule 4 of the Rules Governing Section 2254 Cases in the United States 25 Courts provides that [i]f it plainly appears from the face of the petition and any 26 attached exhibits that the petitioner is not entitled to relief in the district court, the 27 judge must dismiss the petition and direct the clerk to notify the petitioner. Here, 28 summary dismissal is warranted. 3 1 III. 2 ORDER 3 4 IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. 5 6 DATED: November 9, 2011 JOHN A. KRONSTADT United States District Judge 7 8 9 Presented by: 10 11 12 13 ALICIA G. ROSENBERG United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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