Robert Lee Ellis v. Josie Gascelo, No. 2:2018cv03519 - Document 6 (C.D. Cal. 2018)

Court Description: OPINION AND ORDER ON PETITIONFOR WRIT OF HABEAS CORPUS by Judge John F. Walter. IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. (See document for details) (hr)

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Robert Lee Ellis v. Josie Gascelo Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT LEE ELLIS, 12 13 14 15 Petitioner, v. JOSIE GASTELO, Respondent. 16 ) ) ) ) ) ) ) ) ) ) No. CV 18-3519-JFW (AGR) OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS 17 On April 16, 2018, Petitioner filed a Petition for Writ of Habeas Corpus by a 18 Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254 in the Eastern District 19 of California. That court transferred the action here on April 23, 2018. Petitioner 20 challenges his 2012 conviction and sentence in Los Angeles County Superior Court. 21 (Petition at 1.) Because Petitioner previously challenged that conviction in a case in 22 which this Court denied relief on the merits, and because Petitioner has not obtained 23 the Ninth Circuit’s authorization to file a successive Petition, the Court will dismiss the 24 action without prejudice. 25 26 27 28 Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the records in 4 Petitioner’s prior federal habeas corpus action in this district, Ellis v. Soto, No. CV 15- 5 0106-JFW (AGR) (“Ellis I”). 6 On January 7, 2015, in Ellis I, Petitioner filed a petition for writ of habeas corpus 7 by a person in state custody. Petitioner challenged his 2012 conviction of false 8 imprisonment and other crimes. Id., Dkt. No. 1 at 2; Dkt. No. 3 (supporting 9 memorandum) at 8 (Cal. Ct. App. opinion). 10 On June 17, 2016, the Court entered Judgment denying the petition in Ellis I and 11 dismissing the action with prejudice. Id., Dkt. Nos. 20, 28, 29. On the same date, the 12 Court denied a Certificate of Appealability. Id., Dkt. No. 30. On February 13, 2017, the 13 Ninth Circuit also denied a Certificate in its case number 16-55985. Id., Dkt. No. 35. 14 The Court takes judicial notice of Ninth Circuit public records indicating that 15 Petitioner has not sought, and has not received, authorization from the Ninth Circuit to 16 file a second or successive petition challenging the 2012 conviction. (Petitioner did 17 apply twice for leave to file a successive habeas petition in the Northern District of 18 California, but the Ninth Circuit denied both applications in its case numbers 15-70559 19 and 15-73501.) 20 The Petition for Writ of Habeas Corpus filed on April 16, 2018 seeks relief based 21 on the following claims and arguments: (1) prosecutorial misconduct; (2) judicial 22 misconduct; (3) instructional error; (4) ineffective assistance of trial counsel; 23 (5) “inconsistent statement of the witness”; (6) Petitioner is actually innocent; 24 (7) improper opinion testimony by the gang expert; (8) Petitioner’s right to represent 25 himself was improperly denied; (9) jury misconduct; and (10) double jeopardy. (See 26 Petition at 15.) 27 28 2 1 II. 2 DISCUSSION 3 The Petition was filed after enactment of the Antiterrorism and Effective Death 4 Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA in reviewing 5 the Petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997). 6 The AEDPA provides, in pertinent part: “Before a second or successive 7 application permitted by this section is filed in the district court, the applicant shall move 8 in the appropriate court of appeals for an order authorizing the district court to consider 9 the application.” 28 U.S.C. § 2244(b)(3)(A). A district court does not have jurisdiction to 10 consider a “second or successive” petition absent authorization from the Ninth Circuit. 11 Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 12 (9th Cir. 2001) (“When the AEDPA is in play, the district court may not, in the absence 13 of proper authorization from the court of appeals, consider a second or successive 14 habeas application.”) (citation and quotation marks omitted). 15 Here, the Petition is a successive petition that challenges the same custody 16 imposed by the same judgment of the state court as in Ellis I. (Petition at 2.) As noted 17 above, Petitioner has not received authorization from the Ninth Circuit Court of Appeals 18 to file the Petition. This Court must, therefore, dismiss the Petition as a second or 19 successive petition for which it lacks jurisdiction under 28 U.S.C. § 2244(b)(3). See 20 Burton, 549 U.S. at 153-56. 21 Petitioner’s assertion of actual innocence does not alter the analysis. It is the 22 Court of Appeals, not this Court, that must decide whether an applicant has made the 23 required showing to authorize the filing of a successive petition. See 28 U.S.C. 24 § 2244(b)(3); Williams v. Thaler, 602 F.3d 291, 304-05 (5th Cir. 2010) (because 25 petitioner failed to obtain Court of Appeals’ authorization for leave to file successive 26 petition, “district court did not have jurisdiction to consider” whether petitioner 27 adequately showed “actual innocence”). 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 III. 7 ORDER 8 9 IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. 10 11 12 DATED: May 14, 2018 JOHN F. WALTER United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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