Mr. Juan Perez v. Superior Court of California et al

Filing 7

MEMORANDUM AND ORDER SUMMARILY DENYING PETITION AND DISMISSING ACTION by Judge Stephen V. Wilson: (see document image for specifics). Thus, it is ORDERED that Judgment be entered summarily DENYING the Petition and DISMISSING this action without prejudice. (ad)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MR. JUAN PEREZ,

Case No. CV 18-0267-SVW (KK)
Petitioner,

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MEMORANDUM AND ORDER
SUMMARILY DENYING PETITION
AND DISMISSING ACTION

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v.

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SUPERIOR COURT OF CALIFORNIA,
ET AL.,

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Respondent.

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I.

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INTRODUCTION

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Petitioner Juan J. Perez (“Petitioner”) has filed a pro se Petition for Writ of

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Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254

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(“Petition”) challenging his 1996 conviction and sentence for second degree

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robbery. As discussed below, the Court finds the Petition is a second or successive

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petition and thus, summarily DENIES the Petition and DISMISSES this action

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without prejudice.

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II.

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BACKGROUND

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A.

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STATE COURT PROCEEDINGS
On October 6, 1996, following a jury trial in California Superior Court for

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the County of Los Angeles, Petitioner was convicted of one count of second-

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degree robbery in violation of section 211 of the California Penal Code in Case No.

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BA143627. See ECF Docket No. (“Dkt.”) 1, Pet. at 2. On February 4, 1997,

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Petitioner was sentenced to twenty-five years to life for second-degree robbery,

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plus an enhancement for a prior serious or violent felony for a total of thirty-three

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years to life. Id.

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On August 22, 1997, Petitioner filed a direct appeal in the California Court

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of Appeal. See Cal. Courts, Appellate Courts Case Info., 2d Appellate Dist.:

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Docket,

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http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=105

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3465&doc_no=B114918&request_token=NiIwLSIkXkw%2BWyBRSCM9WE9J

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QFA6USxfIiNeIztRMCAgCg%3D%3D (last updated Feb. 26, 2018, 2:50 PM).1

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The California Court of Appeal affirmed Petitioner’s conviction with modifications

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on March 18, 1999, and issued a remittitur on May 25, 1999. Id.; see also Pet. at

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2-3.

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In June 2015, Petitioner filed a habeas petition in the Los Angeles County

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Superior Court. See Perez v. Hatton, Case No. CV 16-2775-SVW (KK), 2016 WL

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4072020, at *1 (C.D. Cal. June 7, 2016). On August 20, 2015, the Los Angeles

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County Superior Court denied the petition. See id.

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The Court takes judicial notice of its own records and files as well as
Petitioner’s prior proceedings in the state courts. Fed. R. Evid. 201(b)(2); In re
Korean Air Lines Co., 642 F.3d 685, 689 n.1 (9th Cir. 2011); United States v.
Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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On October 19, 2015, Petitioner filed a habeas petition in the California

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Court of Appeal. See id. On November 13, 2015, the California Court of Appeal

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denied the petition. See id.

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On January 13, 2016, Petitioner filed a habeas petition in the California

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Supreme Court. See id. On March 30, 2016, the California Supreme Court denied

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the petition. See id.

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B.

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FEDERAL HABEAS PROCEEDINGS
On April 17, 2016, Petitioner constructively filed a pro se Petition for Writ

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of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254

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(“2016 Petition”) in this Court challenging his conviction for second-degree

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robbery in Case No. BA143627. Perez, 2016 WL 4072020, at *1. In the 2016

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Petition, Petitioner raised the sole claim that he “suffered an illegal sentence on

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two strike priors.” Id. On July 26, 2016, the Court denied the 2016 Petition as

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untimely and dismissed the action with prejudice. Perez v. Hatton, Case No. CV

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16-2275-SVW (KK), 2016 WL 4084034 (C.D. Cal. July 26, 2016).

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On August 25, 2017, Petitioner filed a notice of appeal of the denial of the

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2016 Petition in the Ninth Circuit. Perez, Case No. CV 16-2775-SVW (KK), Dkt.

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12; Perez v. Hatton, No. 16-56291, 2017 WL 3976648 (9th Cir. Apr. 24, 2017).

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On April 24, 2017, the Ninth Circuit denied Petitioner’s request for a certificate of

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appealability because Petitioner “had not shown that ‘jurists of reason would find it

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debatable whether the petition states a valid claim of the denial of a constitutional

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right and that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling.’” Perez, 2017 WL 3976648, at *1.

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On January 3, 2018, Petitioner constructively filed the instant Petition

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challenging his conviction for second-degree robbery in Case No. BA143627.

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Dkt. 1. Petitioner raises five grounds for relief in his Petition: (1) Miranda Right

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(“Claim One”); (2) Ineffective Assistance of Counsel (“Claim Two”); (3)

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Prosecutorial Misconduct (“Claim Three”); (4) Equal Protection (“Claim Four”);

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and (5) Sentencing (“Claim Five”). Pet. at 5-6.

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On January 22, 2018, the Court issued an Order to Show Cause (“OSC”)

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why the Petition should not be summarily dismissed as a second or successive

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petition which has not been authorized by the Ninth Circuit. Dkt. 4, Order. The

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Court cautioned Petitioner that if he “fails to demonstrate the Petition is not a

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second or successive petition, or fails to respond within twenty-one (21) days of

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the date of this Order, the Court will dismiss the Petition without prejudice for lack

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of jurisdiction and/or failure to prosecute and obey court orders.” Id. at 4.

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The deadline to respond to the OSC has passed, and Petitioner has failed to

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file a response addressing why the Petition should not be dismissed as a second or

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successive petition, or request an extension of time in which to do so.

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III.

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DISCUSSION

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THE PETITION IS SUBJECT TO DISMISSAL AS A SECOND OR

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SUCCESSIVE PETITION

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Habeas petitioners generally may file only one habeas petition challenging

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their conviction or sentence. See 28 U.S.C. § 2244(b)(1). “A habeas petition is

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second or successive only if it raises claims that were or could have been

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adjudicated on the merits.” McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir.

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2009). “A claim presented in a second or successive habeas corpus application

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under [S]ection 2254 that was not presented in a prior application shall be subject

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to dismissal unless” the new claims fall into one of the narrow exceptions outlined

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in Section 2244(b)(2)(A)-(B). 28 U.S.C. § 2244(b)(2). However, before a district

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court may even consider the claims within a second or successive petition,

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petitioner must “move in the appropriate court of appeals for an order authorizing

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the district court to consider the application.” § 2244(b)(3)(A). Thus, district

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courts lack jurisdiction to consider unauthorized successive petitions and must
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dismiss such petitions without prejudice to refiling if the petitioner obtains the

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necessary authorization. Burton v. Stewart, 549 U.S. 147, 152-53, 127 S. Ct. 793,

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166 L. Ed. 2d 628 (2007); see also 28 U.S.C. § 2244(b)(2).

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Here, the instant Petition challenges the same conviction that was challenged

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in the 2016 Petition. See Dkt. 1, Pet. While the instant Petition is based on new

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claims, the Court lacks jurisdiction to consider the Petition because the Court

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dismissed the 2016 Petition as untimely, thus, rendering the instant Petition

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“second and successive.” McNabb, 576 F.3d at 1029 (“[T]he dismissal of a habeas

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petition as untimely constitutes a disposition on the merits . . . and a further

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petition challenging the same conviction would be ‘second or successive’ for

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purposes of 28 U.S.C. § 2244(b).”). Hence, because Petitioner has not presented

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any documentation indicating the Ninth Circuit has issued “an order authorizing

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the district court to consider the application,” the Court lacks jurisdiction over the

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claims, and the instant Petition is subject to dismissal. 28 U.S.C. § 2244(b)(3)(A).

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IV.

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ORDER

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Thus, it is ORDERED that Judgment be entered summarily DENYING the
Petition and DISMISSING this action without prejudice.

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Dated: March 6, 2018

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HONORABLE STEPHEN V. WILSON
United States District Judge

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Presented by:

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KENLY KIYA KATO
United States Magistrate Judge

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