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Magee v. Clark

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


August 11, 2009

RUCHELL MAGEE, AKA RUCHELL CINQUE MAGEE, PETITIONER,
v.
K. CLARK, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Audrey B. Collins Chief United States District Judge

OPINION AND ORDER ON A STATE HABEAS CORPUS PETITION

This Court, pursuant to Federal Rule of Evidence 201, takes judicial notice that on March 3, 1999, in Magee v. Ayers, case no. CV99-0205-ABC(RC), District Judge Audrey B. Collins ordered that petitioner Ruchell Magee, aka Ruchell Cinque Magee, be declared a vexatious litigant under then-Local Rule 27A, and directed the Clerk of Court to not accept for filing any habeas corpus petition without payment of a filing fee and the prior written authorization from a District Judge or Magistrate Judge issued upon a showing of evidence supporting a claim, because petitioner had, between 1969 and 1999, filed thirty-five federal habeas corpus petitions challenging his 1965 conviction and sentence for kidnapping and robbery in Los Angeles County Superior Court case no. 272227. Since being declared a vexatious litigant in this district court, petitioner has filed at least three habeas corpus petitions in other district courts challenging his 1965 conviction and sentence in Los Angeles County Superior Court case no. 272227, in a blatant attempt to avoid the Order of this Court declaring him a vexatious litigant and requiring approval of any habeas filing by petitioner. Most recently, on July 30, 2009, petitioner filed in the United States District Court for the Eastern District of California his thirty-ninth habeas corpus petition challenging his 1965 conviction and sentence in Los Angeles County Superior Court case no. 272227, and that action was transferred to this district court on August 7, 2009. In short, for 40 years now petitioner has been abusing the writ with his numerous habeas corpus filings in this and other district courts.

This Court finds that the instant petition, was filed without the approval of a District Judge or Magistrate Judge of this district court contrary to this Court's Order of March 3, 1999, and it is yet another abusive and successive petition challenging petitioner's 1965 conviction and sentence in Los Angeles County Superior Court case no. 272227, which petitioner has not received permission from the Ninth Circuit Court of Appeals to file. See 28 U.S.C. § 2244(b)(3)(A) (holding before second or successive application is filed in district court, "the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application").

Rule 4 of the Rules Governing Section 2254 Cases in the United States Courts provides that "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify petitioner." Here, no District Judge or Magistrate Judge approved the filing of petitioner's pending habeas corpus petition, as required by the Order of March 3, 1999, and the petition is abusive and successive; thus, the petition should be summarily dismissed under Rule 4 and Local Rule 72-3.2.

ORDER

IT IS HEREBY ORDERED that Judgment be entered SUMMARILY DISMISSING the petition for writ of habeas corpus of vexatious litigant Ruchell Magee, aka Ruchell Cinque Magee, which was filed without the prior written approval of a District Judge or Magistrate Judge of this district court, as required under the Order dated March 3, 1999.

IT IS FURTHER ORDERED that Judgment be entered summarily dismissing the habeas corpus petition as a successive and abusive petition, which this Court lacks subject matter jurisdiction to consider.

The Clerk shall notify petitioner of the Judgment.

PRESENTED BY:

ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE

20090811

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