The opinion of the court was delivered by: Gary A. Feess United States District Judge
OPINION AND ORDER ON A PETITION FOR HABEAS CORPUS
On February 22, 2010, petitioner Jerome Brown, a state inmate proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 1974 conviction in Los Angeles County Superior Court case no. A126761, which was used as a "strike" to enhance petitioner's sentence in Orange County Superior Court case no. 97HF0802, for which he is currently in custody.*fn1
The pending habeas corpus petition is one of many attempts by petitioner to challenge a prior "strike" used to enhance his current sentence. Although the instant habeas corpus petition raises a direct challenge to the 1974 prior conviction, petitioner is really challenging his current sentence by claiming it was enhanced by an allegedly unconstitutional prior conviction. However, petitioner is barred from doing this since his prior conviction "'is no longer open to direct or collateral attack in its own right because the [petitioner] failed to pursue those remedies while they were available (or because the [petitioner] did so unsuccessfully). . . .'" Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 402, 121 S.Ct. 1567, 1573, 149 L.Ed. 2d 608 (2001) (citing Daniels v. United States, 532 U.S. 374, 382, 121 S.Ct. 1578, 1583, 149 L.Ed. 2d 590 (2001)). Additionally, as a challenge to his current sentence, the instant petition is a successive petition, which raises a claim petitioner could have raised in Brown I, and it plainly appears on the face of the petition that petitioner has not moved in the Ninth Circuit Court of Appeals for an order authorizing this Court to consider the instant successive petition. Under The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a successive habeas petition is not a matter of right -- and the gatekeeping function belongs to the Court of Appeals, not to the district court. Felker v. Turpin, 518 U.S. 651, 661, 116 S.Ct. 2333, 135 L.Ed. 2d 827 (1996).
Alternatively, assuming arguendo petitioner is directly challenging his prior 1974 conviction, rather than his current sentence as enhanced by that conviction, that challenge is clearly untimely under AEDPA, 28 U.S.C. § 2244(d),*fn2 which "established a one-year period of limitations for federal habeas petitions filed by state prisoners." Bryant v. Arizona Attorney Gen., 499 F.3d 1056, 1059 (9th Cir. 2007); 28 U.S.C. § 2244(d).
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 the petitioner." 28 foll. U.S.C. § 2254, Rule 4. Since petitioner's habeas corpus petition is an attempt to challenge a prior conviction enhancing a current sentence and a successive petition or, alternatively, is untimely, it must be dismissed.
IT IS HEREBY ORDERED that Judgment be entered SUMMARILY DISMISSING the petition for writ of habeas corpus for lack of subject matter jurisdiction or, alternatively, as untimely.
IT IS FURTHER ORDERED that the Clerk shall notify petitioner of the dismissal.
ROSALYN M. CHAPMAN UNITED STATES ...