Clinton Douglas King v. Jared D. Lozano
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE 18 by Judge R. Gary Klausner. IT THEREFORE IS ORDERED that judgment be entered denying the Petition and dismissing this action with prejudice except for Petitioner's three-strikes claim, which is dismissed withoutprejudice. (es)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CLINTON DOUGLAS KING,
DANIEL E. CUEVA, Acting
Case No. CV 20-1766-RGK (JPR)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
The Court has reviewed the Petition, records on file, and
17 Report and Recommendation of U.S. Magistrate Judge, which
18 recommends that the Petition be denied and this action be
19 dismissed. On January 25, 2021, Petitioner filed objections to
20 the R. & R.; Respondent did not reply.
In his objections, Petitioner mostly simply repeats
22 arguments from his Petition and his opposition to the motion to
23 dismiss. For instance, he asserts that his proposition claims
24 are cognizable on habeas review and not untimely because the
25 claims were “not presented in a prior application” and rely “on a
26 new rule of constitutional law.” (Objs. at 2.) But as the
27 Magistrate Judge noted, these claims are not cognizable on
28 federal habeas review because they concern state law only, and
1 that law’s discretionary nature forecloses any procedural due
2 process argument.
(See R. & R. at 5-9, 10.)
Petitioner also objects to the Magistrate Judge’s finding
4 that his three-strikes-sentence claim was improperly successive.
5 (Objs. at 3.)
He argues that the claim is not successive “due to
6 the judgment challenged,” citing Magwood v. Patterson, 561 U.S.
7 320 (2010).
(Objs. at 3.)
Magwood held that a habeas
8 petitioner’s challenge to his second death sentence was not
9 improperly successive because an intervening judgment had been
10 entered on resentencing.
561 U.S. at 341-42.
As the Magistrate
11 Judge noted (R. & R. at 14), there has been no intervening
12 judgment here.
Therefore, unlike the petitioner in Magwood,
13 Petitioner is attempting to challenge his original judgment in an
14 improperly successive petition.
See Cole v. Sullivan, 480 F.
15 Supp. 3d 1089, __, 2020 WL 4905528, at *5 (C.D. Cal. Aug. 19,
Having reviewed de novo those portions of the R. & R. to
18 which Petitioner objects, the Court agrees with and accepts the
19 findings and recommendations of the Magistrate Judge.
20 THEREFORE IS ORDERED that judgment be entered denying the
21 Petition and dismissing this action with prejudice except for
22 Petitioner’s three-strikes claim, which is dismissed without
R. GARY KLAUSNER
U.S. DISTRICT JUDGE
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