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Magee v. Clark

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


June 2, 2010

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 AND ORDER DENYING CERTIFICATE OF APPEALABILITY

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), now Chief 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 from petitioner 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 four 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 May 12, 2010, in the United States District Court for the Eastern District of California, petitioner filed his 40th 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 May 27, 2010. In short, for more than 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, the pending habeas corpus petition is abusive and successive, and no District Judge or Magistrate Judge approved its filing, as required by the Order of March 3, 1999; thus, the petition should be summarily dismissed under Rule 4 and Local Rule 72-3.2.

Further, this Court finds any appeal would not be taken in good faith, and that petitioner has not made a substantial showing that he has been denied a constitutional right and that this Court is not correct in its procedural ruling, for the reasons set forth herein.

Accordingly, a certificate of appealability should not issue under 28 U.S.C. § 2253(c)(2) and Fed. R. App. P. 22(b). Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1604, 146 L.Ed. 2d 542 (2000); Cooper v. Calderon, 308 F.3d 1020, 1021-22, n.2 (9th Cir. 2002), cert. denied, 123 S.Ct. 1793 (2003).

ORDER

IT IS HEREBY ORDERED that Judgment be entered SUMMARILY DISMISSING the abusive and successive petition for writ of habeas corpus filed by 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.

IT IS STILL FURTHER ORDERED that a Certificate of Appealability be DENIED.

The Clerk shall notify petitioner of the Judgment.

DATE: 06/03/2010

ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE

20100602

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