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Brad S. Kohler v. R. Grounds

August 9, 2012

BRAD S. KOHLER, PETITIONER,
v.
R. GROUNDS, RESPONDENT.



The opinion of the court was delivered by: Honorable Christina A. Snyder United States District Judge

MEMORANDUM AND ORDER RE: DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS (28 U.S.C. § 2254) AS SUCCESSIVE

I. INTRODUCTION

On May 25, 2012, Brad S. Kohler ("Petitioner") constructively filed the current Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition") in the United States District Court for the Northen District of California.*fn1 (ECF No. 1.) On July 19, 2012, an order was entered transferring the Petition to this District. (ECF No. 2.)

Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has examined the current Petition and finds that it plainly appears from its face that Petitioner is not entitled to relief in the district court. Specifically, the Court finds that the Petition is subject to dismissal as second and successive.

II. PROCEDURAL HISTORY

On November 14, 2001, Petitioner pled guilty in the Ventura County Superior Court, case number 2000107216, to two counts of committing a lewd act upon a child and admitted as true the special allegations that there were multiple victims, that the victims were under age fourteen, and that he engaged in "substantial sexual conduct" as defined by California Penal Code § 1203.066(b).*fn2

Cal. Penal Code §§ 288(a), 667.61(e)(5), 1203.066(a)(8). On May 20, 2002, the trial court sentenced Petitioner to two concurrent terms of fifteen years to life imprisonment. (Answer, Ex. A.*fn3

Petitioner appealed the judgment to the California Court of Appeal, raising two issues: (1) the trial court erred because it did not consider all relevant factors in determining whether to grant probation, and, therefore, abused its discretion when it denied probation; and (2) the sentences of fifteen years to life imprisonment constituted cruel and unusual punishment. On February 19, 2003, the court of appeal rejected Petitioner's claims and affirmed the judgment. (Answer, Ex. B.)

Petitioner then filed a petition for review in the California Supreme Court. On May 13, 2003, the supreme court summarily denied the petition. (Answer, Ex. C.)

On July 9, 2004, Petitioner filed a habeas corpus petition in the California Supreme Court. (Lodgment 8 at 8.) On July 13, 2005, the supreme court summarily denied the petition. (Answer, Ex. D.)

On August 16, 2005, Petitioner filed his first § 2254 petition in this District. (CV 05-5982-CAS (OP) ECF No. 1.) On October 13, 2006, Judgment was entered denying the petition and dismissing the action with prejudice. (Id. ECF No. 22.) On November 28, 2006, an Order was entered granting the issuance of a certificate of appealability. (Id. ECF No. 26.) On January 18, 2008, the mandate was entered from the Ninth Circuit affirming the Judgment of this Court. (Id. ECF No. 32.)

On October 11, 2011, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, case number S197183. On February 15, 2012, the supreme court denied the petition. (Official Records of California Courts.*fn4

Answer, ...


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