Earl A. Lee v. J. Soto, No. 2:2016cv05470 - Document 16 (C.D. Cal. 2016)

Court Description: OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION) by Judge Otis D. Wright, II. On March 30, 2016, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. Petit ioner challenges his 2008 murder conviction in Los Angeles County Superior Court. Because he previously challenged that conviction here in a habeas action that the Court dismissed with prejudice, and because he lacks Ninth Circuit authorization for another such challenge, the Court lacks jurisdiction over the new petition. IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. (See Order for details.) (mp)

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Earl A. Lee v. J. Soto Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EARL A. LEE, 12 Petitioner, 13 14 15 16 17 18 v. J. SOTO, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 16-5470-ODW (AGR) OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION) On March 30, 2016, Petitioner filed a Petition for Writ of Habeas Corpus by 19 a Person in State Custody pursuant to 28 U.S.C. § 2254. Petitioner challenges 20 his 2008 murder conviction in Los Angeles County Superior Court. Because he 21 previously challenged that conviction here in a habeas action that the Court 22 dismissed with prejudice, and because he lacks Ninth Circuit authorization for 23 another such challenge, the Court lacks jurisdiction over the new petition. 24 I. 25 PROCEDURAL BACKGROUND 26 27 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the records in Petitioner’s prior federal habeas corpus actions in the Central District. 28 Dockets.Justia.com 1 The Petition and judicially-noticeable records indicate that a Los Angeles 2 County Superior Court jury convicted Petitioner of two counts of first degree 3 murder, with special-circumstance findings, in 2008. The court sentenced him to 4 life without the possibility of parole. See People v. Lee, No. B213692, 2010 WL 5 2636483 (2010). 6 On August 16, 2011, petitioner filed a Petition for Writ of Habeas Corpus in 7 this Court in case number CV 11-6739-ODW (OP) (Lee I). Petitioner asserted 8 seven claims challenging the same 2008 conviction. On November 27, 2012, the 9 Court accepted the Magistrate Judge’s 71-page Report And Recommendation, 10 denied the habeas petition with prejudice, and denied a certificate of 11 appealability. On March 18, 2013, the Ninth Circuit likewise denied a certificate 12 of appealability in its case number 13-55293. (Lee I Dkt. No. 40.) A current 13 search of the Ninth Circuit’s public docket reflects no subsequent filings by 14 Petitioner, such as an application for leave to file a second or successive petition. 15 On March 30, 2016, Petitioner filed the Petition. Petitioner presents 16 several claims, again challenging the 2008 conviction. 17 II. 18 DISCUSSION 19 The Petition was filed after enactment of the Antiterrorism and Effective 20 Death Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA 21 in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997). 22 The AEDPA provides, in pertinent part: “Before a second or successive 23 application permitted by this section is filed in the district court, the applicant shall 24 move in the appropriate court of appeals for an order authorizing the district court 25 to consider the application.” 28 U.S.C. § 2244(b)(3)(A). A district court does not 26 have jurisdiction to consider a “second or successive” petition absent 27 authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152 (2007); 28 Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (“When the AEDPA is in 2 1 play, the district court may not, in the absence of proper authorization from the 2 court of appeals, consider a second or successive habeas application.”) (citation 3 and quotation marks omitted). 4 Here, the Petition is a second or successive petition challenging the same 5 2008 conviction and/or sentence as in Lee I. Petitioner has not obtained the 6 required authorization from the Ninth Circuit for filing another habeas challenge to 7 the same conviction. 8 Rule 4 of the Rules Governing Section 2254 Cases in the United States 9 Courts provides that “[i]f it plainly appears from the face of the petition and any 10 attached exhibits that the petitioner is not entitled to relief in the district court, the 11 judge must dismiss the petition and direct the clerk to notify the petitioner.” Here, 12 summary dismissal is warranted. 13 III. 14 ORDER 15 16 IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. 17 18 DATED: _September 12, 2016 OTIS D. WRIGHT II United States District Judge 19 20 21 22 23 24 25 26 27 28 3

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