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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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WILLIAM LEE STEWART, JR.,
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) Case No. CV 16-7396-JFW(AJW)
)
Petitioner,
) MEMORANDUM AND ORDER
) DISMISSING PETITION
v.
)
)
DEBBIE ASUNCION, Warden,
)
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Respondent.
)
_________________________________)

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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].
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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 Stewart v. Borg, 69 F.3d 544 (9th Cir. 1995) (unpublished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].
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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
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“Before a second or successive application permitted by this

20 section is filed in the district court, the applicant shall move in the
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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).

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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).
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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
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It is so ordered.

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12 Dated: March 1, 2017
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John F. Walter
United States District Judge

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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.

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