Eleri Charles v. State of California

Filing 3

ORDER OF DISMISSAL by Judge Beverly Reid O'Connell. IT IS ORDERED that the Petition 1 be dismissed without prejudice. (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION
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ELERI CHARLES,

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) Case No. CV 17-03472-BRO (AS)
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) ORDER OF DISMISSAL
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Petitioner,

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v.
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STATE OF CALIFORNIA,
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Respondent.
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BACKGROUND

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On May 8, 2017, Petitioner, a prisoner in state custody

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proceeding pro se, filed “A Petition for a Writ of Habeas Corpus

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Under Section 2254, or in the Alternative a Writ of Error Coram

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Nobis, 18 U.S.C. 1651(a) (Docket Entry No. 1), which the Court

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construes as Petition for Writ of Habeas Corpus by a Person in

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State

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Petitioner challenges his 2009 conviction (pursuant to a plea of

Custody

pursuant

to

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U.S.C.

§

2254

(“Petition”).

no contest) for sexual penetration by a foreign object and for

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forcible rape and the five-year sentence he received for that

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conviction

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LA056220).

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federal habeas relief: (1) The trial court failed to specify to

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Petitioner that the registration requirement for a sex offender

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under

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Petitioner’s guilty plea was unintelligent and was based on the

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ineffective assistance of counsel, because the trial court and

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Petitioner’s trial counsel failed to advise Petitioner of the

in

the

The

Angeles

Petition

County
alleges

Superior
the

Court1

following

(Case

No.

grounds

for

California Penal Code § 2009 was lifelong; and (2)

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lifelong

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Petitioner’s Affidavit dated May 2, 2017 [2 pages]).

registration

requirement.

(Petition

at

1-19,

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On October 17, 2011, Petitioner filed a Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 in which he challenged

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the same 2009 conviction. See Charles Eleri v. James D. Hartley,

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CV 11-09169-BRO (AS); (Docket Entry No. 1) (“the first prior

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habeas action”).

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and Judgment denying that habeas petition with prejudice, in

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accordance with the findings and conclusions of the Magistrate

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Judge.

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Court denied a certificate of appealability. (Id.; Docket Entry

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No. 63).

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relief from Judgment pursuant to Fed. R. Civ. P. 60(b)(6).

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Docket Entry No. 70).

On August 7, 2014, the Court issued an Order

(Id.; Docket Entry Nos. 61-62).

On the same date, the

On January 15, 2015, the Court denied a motion for
(Id.;

On June 15, 2015, the Ninth Circuit Court

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On April 16, 2009, Petitioner was convicted (pursuant
to a plea of no contest) of one count of sexual penetration and
one count of rape. On May 8, 2009, Petitioner was sentenced to
prison for 5 years. (See Charles Eleri v. James D. Hartley, Case
No. CV 11-09169-BRO (AS); Docket No. 55 at 2).
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of Appeals denied Petitioner’s request for a certificate of

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appealability.

(Id.; Docket Entry No. 71).

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On August 23, 2016, Petitioner filed a Petition for Writ of

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Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C.

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§ 2254 in which he challenged the same 2009 conviction. See

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Charles Eleri v. James D. Hartley, CV 16-06328-BRO (AS); Docket

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Entry No. 1) (“the second prior habeas action”).

On August 29,

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2016,

and

the

Court

issued

an

Order

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dismissing

that

habeas

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unauthorized second or successive petition.

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Nos. 3-4).

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denying a motion for relief from Judgment pursuant to Fed. R.

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Civ. P. 60(b)(2) and (b)(6).

petition

of

Dismissal

without

Judgment

prejudice

as

an

(Id.; Docket Entry

On September 15, 2016, the Court issued an Order

(Id.; Docket Entry No. 6).

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DISCUSSION

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The Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”), enacted on April 24, 1996, provides in pertinent part

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that:

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(a) No circuit or district judge shall be required
to entertain an application for a writ of habeas corpus
to inquire into the detention of a person pursuant to a
judgment of a court of the United States if it appears
that the legality of such detention has been determined
by a judge or court of the United States on a prior
application for a writ of habeas corpus, except as
provided in §2255.

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(b)(1) A claim presented in a second or successive
habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed.

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(2) A claim presented in a second or successive
habeas corpus application under section 2254 that was
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not presented in a prior application shall be dismissed
unless--

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(A) the applicant shows that the claim relies on a
new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable; or
(B)(i) the factual predicate for the claim could
not have been discovered previously through the exercise
of due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable fact
finder would have found the applicant guilty of the
underlying offense.

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(3)(A) Before a second or successive application
permitted by this section is filed in the district
court, the applicant shall move in the appropriate court
of appeals for an order authorizing the district court
to consider the application.

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(B) A motion in the court of appeals for an order
authorizing the district court to consider a second or
successive application shall be determined by a threejudge panel of the court of appeals.
(C) The court of appeals may authorize the filing
of a second or successive application only if it
determines that the application makes a prima facie
showing that the application satisfies the requirements
of this subsection.
(D) The court of appeals shall grant or deny the
authorization to file a second or successive application
not later than 30 days after the filing of the motion.
(E) The grant or denial of an authorization by a
court of appeals to file a second or successive
application shall not be appealable and shall not be the
subject of a Petition for Rehearing or for a Writ of
Certiorari.
(4) A district court shall dismiss any claim
presented in a second or successive application that the
court of appeals has authorized to be filed unless the
applicant
shows
that
the
claim
satisfies
the
requirements of this section. 28 U.S.C. § 2244.

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28 U.S.C. § 2244(b)(3) “creates a ‘gatekeeping’ mechanism for
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the consideration of second or successive applications in district

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court.

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appeals a motion for leave to file a second or successive habeas

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application in the district court.

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Turpin, 518 U.S. 651, 657 (1996).

The prospective applicant must file in the court of

§ 2244(b)(3)(A).”

Felker v.

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The instant Petition, the first prior habeas action, and the

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second prior habeas action all challenge Petitioner’s custody

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pursuant to the same 2009 judgment entered by the Los Angeles

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County Superior Court.

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on May 8, 2017, well after the effective date of the AEDPA, is a

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second or successive habeas petition for purposes of 28 U.S.C. §

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2244. Therefore, Petitioner was required to obtain authorization

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from the Court of Appeals before filing the present Petition. See

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28 U.S.C. §2244(b)(3)(A). No such authorization has been obtained

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in this case.

Accordingly, the instant Petition, filed

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Moreover, the claims asserted in the instant Petition do not

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appear to fall within the exceptions to the bar on second or

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successive petitions because the asserted claims are not based on

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newly discovered facts or a “a new rule of constitutional law,

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made retroactive to cases on collateral review by the Supreme

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Court, that was previously unavailable.” Tyler v. Cain, 533 U.S.

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656, 662 (2001).

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United States Court of Appeals upon a petitioner’s motion for an

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order authorizing the district court to consider his second or

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successive petition. 28 U.S.C. § 2244(b); see also Burton v.

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Stewart, 549 U.S. 147, 157 (2007) (where the petitioner did not

However, this determination must be made by the

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receive authorization from the Court of Appeals before filing

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second or successive petition, “the District Court was without

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jurisdiction to entertain [the petition]”); Barapind v. Reno, 225

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F.3d 1100, 1111 (9th Cir. 2000) (“[T]he prior-appellate-review

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mechanism set forth in § 2244(b) requires the permission of the

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court of appeals before ‘a second or successive habeas application

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under § 2254’ may be commenced.”).

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obtained authorization from the Ninth Circuit Court of Appeals,

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this Court cannot entertain the present Petition.

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Because Petitioner has not

See Burton v.

Stewart, supra.

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ORDER

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Accordingly, IT IS ORDERED that the Petition be dismissed
without prejudice.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED:

May 11, 2017

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____________________________
BEVERLY REID O’CONNELL
UNITED STATES DISTRICT JUDGE

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