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Barry Marlon Summers v. Gary S. Sandor

September 30, 2012

BARRY MARLON SUMMERS, PETITIONER,
v.
GARY S. SANDOR, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Honorable David O. Carter 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 August 28, 2012, Barry Marlon Summers ("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").*fn1 (ECF No. 1.) 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 March 14, 2002, Petitioner was convicted after a jury trial in the San Bernardino County Superior Court, case number FSB029047, of three counts of committing a lewd act upon a child (Cal. Penal Code § 288(a)). (Pet. at 2.) On December 18, 2002, Petitioner was sentenced to a total state prison term of twenty-five years to life, consisting of (1) a determinate term of ten years to life (eight years on Count 3 and two years on Count 2); to run consecutively to (2) an indeterminate term of fifteen years to life on Count 1, based on the multiple-victim allegation. (Reporter's Transcript ("RT") at 590-95; Lodgment 8 at 2. *fn2

Petitioner appealed the judgment to the California Court of Appeal. On February 4, 2004, the court of appeal affirmed the judgment. (Lodgments 5-8.)

Petitioner then filed a petition for review in the California Supreme Court. (Lodgment 9.) On April 28, 2004, the supreme court denied the petition. (Lodgment 10.)

On April 16, 2007, Petitioner filed a habeas corpus petition in the California Supreme Court, case number S151913. On September 12, 2007, the supreme court denied the petition with citation to In re Waltreus, 62 Cal. 2d 218 (1965), In re Dixon, 41 Cal. 2d 756 (1953), and In re Swain, 34 Cal. 2d 300, 304 (1949).

(Supp'l Lodgments 1, 2.)

On April 15, 2005, Petitioner filed his first § 2254 petition in this District. (EDCV 05-306-DOC (OP) ECF No. 1.) On November 26, 2007, Petitioner filed a First Amended Petition ("FAP"). (Id. ECF No. 60.) On January 29, 2010, Judgment was entered denying the FAP and dismissing the action with prejudice. (Id. ECF No. 82.) On February 3, 2010, an Order was entered denying the issuance of a certificate of appealability. (Id. ECF No. 83.) On April 25, 2011, an Ordered was entered by the Ninth Circuit also denying the issuance of a certificate of appealability. (Id. ECF No. 91.)

Petitioner has sought further habeas relief in the California Supreme Court, case numbers S164661 and S201114. On December 17, 2008, and May 9, 2012, respectively, the supreme court denied the habeas petitions. (Pet. at 3-5; Official Records of California Courts.*fn3

III. DISCUSSION

A. Standard of Review.

This Court may entertain a habeas application on behalf of a person who is in custody pursuant to a state court judgment and in violation of the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a). The Court need neither grant the writ nor order a return if it appears from the application that the applicant is not entitled to relief. See 28 U.S.C. § 2243. "If it plainly appears from the face of the petition and any exhibits annexed to it 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." Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts, 28 U.S.C. foll. § 2254; see also Hendricks v. ...


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