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Morris v. Scribner

July 26, 2010

CONDALEE MORRIS, PETITIONER,
v.
LARRY SCRIBNER, RESPONDENT.



The opinion of the court was delivered by: George H. King United States District Judge

MEMORANDUM AND ORDER DISMISSING SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS

On July 14, 2010, Petitioner Condalee Morris ("Petitioner"), a prisoner in state custody proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition"), in which he challenges his 2005 state court conviction and sentence in Los Angeles County Superior Court Case No. BA279836. Petitioner has filed several petitions in this Court challenging his 2005 conviction and sentence. Three of these petitions were dismissed without prejudice for failure to exhaust state court remedies. (See Case Nos. CV 08-5447-GHK (CT), CV 08-8538-GHK (CT), and CV 09-2183-GHK (CT).) A fourth petition, in the matter of Condalee Morris v. Larry Scribner, Case No. CV 09-3146-GHK (JEM), was denied on the merits and dismissed with prejudice on November 19, 2009.

For the reasons set forth more fully below, the instant Petition must be dismissed as an unauthorized successive habeas petition.

PROCEEDINGS

Most of the relevant case history is set forth in the Court's October 22, 2009, Report and Recommendation in Case No. CV 09-3146-GHK (JEM) ("October 2009 R&R"):*fn1

On August 3, 2005, [in Case No. BA279836,] a Los Angeles County Superior Court jury found Petitioner guilty of the following felonies: (1) two counts of home invasion robbery in concert (Cal. Penal Code § 211 and § 213(a)(1)(A)) (Counts One and Two); (2) one count of making a criminal threat (Cal. Penal Code § 422) (Count Six); (3) two counts of assault with a firearm (Cal. Penal Code § 245(a)(2)) (Counts Seven and Nine); (4) one count of being a felon in possession of a firearm (Cal. Penal Code § 12021(a)(1)) (Count Eight); and (5) one count of attempted home invasion robbery (Cal. Penal Code § 664 and § 211) (Count Ten). (Report and Recommendation in Case No. CV 09-3146-GHK (JEM), filed October 22, 2009, at 2.) The jury found true allegations that Petitioner personally used a firearm (Cal. Penal Code § 12022.53(b), § 1203.06(a)(1), § 12022.5(a)(1)). (CT 233-36, 238-39.) On August 17, 2005, the trial court sentenced Petitioner to thirty-five years in state prison. (CT 246-49, 266-68.)

Petitioner appealed his conviction to the California Court of Appeal, raising claims not asserted in the First Amended Petition. (Lodg. Nos. 3-5.) On September 28, 2007, the California Court of Appeal issued an unpublished decision staying Petitioner's sentence on his conviction for making a criminal threat, but otherwise affirming his conviction and sentence. (Lodg. No. 6 at 20.) On November 5, 2007, Petitioner filed a petition for review in the California Supreme Court. (Lodg. No. 7.) On December 12, 2007, the California Supreme Court summarily denied review. (Lodg. No. 8 at 2.)

Petitioner then filed a series of habeas petitions in the Los Angeles County Superior Court, the California Court of Appeal, and the California Supreme Court, all of which were denied. (Lodg. Nos. 9-27.) The Court will summarize only those pertinent to his current claims. Petitioner raised Grounds One through Four of the First Amended Petition in a petition for a writ of habeas corpus in the Los Angeles County Superior Court, filed March 5, 2008.*fn2 On May 27, 2008, the Superior Court issued a short decision denying relief. (Lodg. No. 9.) Petitioner presented Grounds One Through Four to the California Supreme Court by habeas petition filed August 27, 2008, and presented Ground Five in an "Additional Supplemental Brief" filed December 4, 2008 in connection with the same petition. (Lodg. Nos. 12, 13.) On March 11, 2009, the California Supreme Court summarily denied the petition. (Lodg. No. 15.)

While his habeas petition in the California Supreme Court was pending, Petitioner raised Ground Five in the California Court of Appeal by habeas petition filed on December 12, 2008. (Lodg. No. 19.) On December 16, 2008, the California Court of Appeal denied the petition. (Lodg. No. 20.) On December 24, 2008, Petitioner filed another habeas petition in the Court of Appeal raising Ground Five. (Lodg. No. 21.) On January 14, 2009, the California Court of Appeal denied the petition. (Lodg. No. 22.) On January 13, 2009, Petitioner filed a third habeas petition in the California Court of Appeal raising Ground Five. (Lodg. No. 23.) On January 28, 2009, Petitioner filed a supplemental habeas petition in the same action, again raising Ground Five. (Lodg, No. 24.) On February 4, 2009, the California Court of Appeal denied the petition. (Lodg. No. 25.) Petitioner filed another habeas petition in the California Court of Appeal on March 11, 2009, which the Court of Appeal denied on March 19, 2009. (Lodg. Nos. 26, 27.)

While Petitioner was pursuing his state habeas petitions, he also filed three petitions for a writ of habeas corpus in the United States District Court for the Central District of California, which were dismissed without prejudice for failure to exhaust his state court remedies. (See Docket in Case No. CV 08-5447-GHK (CT); Case No. CV 08-8538-GHK (CT); Case No. CV 09-2183-GHK (CT)). (October 2009 R&R at 2-3.)

On May 5, 2009, in the matter of Condalee Morris v. Larry Scribner, Case No. CV 09-3146-GHK (JEM), Petitioner filed a petition attacking the judgment in Los Angeles County Superior Court Case No. BA279836. On May 19, 2009, Petitioner filed a First Amended Petition (the "May 2009 Federal Petition"). On September 11, 2009, Respondent filed an Answer and lodged the state record. On September 30, 2009, Petitioner filed a Traverse.

On October 22, 2009, the Court filed the October 2009 R&R, in which it recommended that all claims be denied on the merits and that the May 2009 Federal Petition be dismissed with prejudice.

On November 19, 2009, the District Judge issued an Order adopting the Report and Recommendation and entered a Judgment denying the May 2009 Federal Petition and dismissing the action with prejudice.

On July 14, 2010, Petitioner filed the instant Petition, which also attacks the judgment in Los Angeles County ...


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