William Lee Stewart Jr v. Debbie Asuncion

Filing 20

MEMORANDUM AND ORDER DISMISSING PETITION by Judge John F. Walter, re Petition for Writ of Habeas Corpus (2254) 1 . Because petitioner has not obtained leave from the Court of Appeals to file a successive petition, the petition is dismissed for lack of jurisdiction. (SEE ATTACHED ORDER FOR FURTHER DETAILS.) (jsan)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 WESTERN DIVISION 10 WILLIAM LEE STEWART, JR., 11 12 13 14 15 ) Case No. CV 16-7396-JFW(AJW) ) Petitioner, ) MEMORANDUM AND ORDER ) DISMISSING PETITION v. ) ) DEBBIE ASUNCION, Warden, ) ) Respondent. ) _________________________________) 16 In 1984, petitioner pleaded guilty to two counts of first degree 17 murder and three counts of assault with a deadly weapon. In addition, 18 petitioner admitted the special circumstance allegations. Petitioner 19 was sentenced to state prison for a term of life without the 20 possibility of parole. [Petition at 2]. 21 On October 4, 1991, petitioner filed a petition for a writ of 22 habeas corpus in this Court challenging his 1984 conviction. Case No. 23 CV 91-539-RMT(EE). The petition alleged that petitioner's guilty plea 24 was involuntary because it was a result of ineffective assistance of 25 counsel. After two evidentiary hearings, the petition was denied on the 26 merits. Petitioner appealed, and the Ninth Circuit affirmed the 27 judgment. Stewart v. Borg, 69 F.3d 544 (9th Cir. 1995) (unpublished 28 disposition). 1 On February 28, 2001, petitioner filed a request for leave to file 2 a second or successive petition in the Ninth Circuit Court of Appeals. 3 Case No. 01-70318. The request was denied on April 16, 2001. [Lodged 4 Document No. 6]. 5 Petitioner filed the current petition for a writ of habeas corpus 6 on October 3, 2016.1 The petition raises three claims for relief: (1) 7 “Under the Fourteenth Amendment of the U.S. Constitution Equal 8 Protection & Due Process Clauses by not following California Penal Code 9 1385 dealing with special circumstances”; (2) the California Court of 10 Appeal failed to “follow established law concerning special 11 circumstances allegations after a defendant has successfully completed 12 an extensive rehab [sic] prior”; (3) the California Supreme Court 13 failed to follow established law in denying petitioner’s habeas corpus 14 petition because it failed to take into account that petitioner “sought 15 consideration to strike special circumstances.” [Petition at 5-6]. 16 Based upon petitioner’s allegations, it appears that the petition 17 challenges petitioner’s conviction of the special circumstance 18 allegation.2 19 “Before a second or successive application permitted by this 20 section is filed in the district court, the applicant shall move in the 21 22 23 24 25 26 27 28 1 Petitioner has filed at least four other habeas corpus petitions in this Court, all of which were dismissed as successive. See Case Nos. CV 96-8661-GHK(AJW); CV 00-6888-RJK(AJW); CV 00-10904-CM(AJW); CV 164728-JFW(AJW). 2 To the extent that petitioner might attempt to state a claim based upon the state courts’s alleged error in deciding his habeas corpus petitions, he cannot do so. Allegations of error during a state habeas corpus proceeding are attacks on a proceeding collateral to the one that resulted in petitioner’s custody, and therefore do not provide a basis for federal habeas relief. See Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997), cert. denied, 525 U.S. 903 (1998); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.) (per curiam), cert. denied, 493 U.S. 1012 (1989). 2 1 appropriate court of appeals for an order authorizing the district 2 court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Absent 3 authorization from the Court of Appeals, this Court lacks jurisdiction 4 over a successive petition. See Magwood v. Patterson, 561 U.S. 320, 5 330-331 (2010); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 6 2001), cert. denied, 538 U.S. 984 (2003). 7 Because petitioner has not obtained leave from the Court of 8 Appeals to file a successive petition, the petition is dismissed for 9 lack of jurisdiction.3 10 It is so ordered. 11 12 Dated: March 1, 2017 13 John F. Walter United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Ninth Circuit Rule No. 22-3(a) provides that “[i]f a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals.” Because the circumstances indicate that petitioner intentionally filed this action in this Court, not that he did so mistakenly, Rule 22-3(a) is inapplicable. Nevertheless, the Clerk is directed to mail petitioner a copy of Ninth Circuit Form 12 so that petitioner may file an application for leave to file a second or successive petition in the Court of Appeals. 3

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