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Yoon

August 24, 2011

YOON, ON HABEAS CORPUS,


The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

MEMORANDUM AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

I. BACKGROUND

On August 5, 2011, pro se petitioner, in state custody, filed a Petition for Writ of Habeas Corpus ("Petition"). The Petition challenges his 15 year sentence resulting from his 1999 convictions for kidnapping and battery, Los Angeles County Superior Court (Case No. KA044269). (Petition at 5-6, Exhibit 7 [Abstract of Judgment -- 2 pages; January 25, 2000 Transcript at 46-49). As best the Court can glean from petitioner's allegations, the Petition alleges that petitioner's assault conviction in Los Angeles County Superior Court Case No. BA141348 (pursuant to a no contest plea) was improperly used to enhance petitioner's sentence in Case No. KA044269. (Petition at 1-12).*fn1

II. DISCUSSION

On August 26, 2003, petitioner filed a Petition for Writ of Habeas Corpus herein (Case number 03-6089-VAP (SH)). In that habeas petition, petitioner challenged the same 1999 convictions. On February 23, 2004, the district court denied that habeas petition with prejudice, in accordance with the conclusions of the Magistrate Judge. On July 27, 2004, the district court denied petitioner's request for a certificate of appealability. On August 31, 2004 and October 8, 2004, the Ninth Circuit Court of Appeals denied petitioner's requests for a certificate of appealability.

On November 10, 2004, petitioner filed another Petition for Writ of Habeas Corpus herein (Case number CV 04-9252-PA (SH)). In that habeas petition, petitioner challenged the same 1999 convictions (as well as a 1997 conviction). On November 22, 2004, the district court signed an Order dismissing that habeas petition, since it improperly challenged two separate convictions and constituted an unauthorized, successive petition.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), enacted on April 24, 1996, provides in pertinent part that:

(a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in §2255.

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.

(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order ...


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