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Lester Phillip Blake, Jr v. P. D. Brazelton

October 23, 2012

LESTER PHILLIP BLAKE, JR., PETITIONER,
v.
P. D. BRAZELTON, RESPONDENT.



The opinion of the court was delivered by: Honorable Dean D. Pregerson 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 June 25, 2012, Lester Phillip Brake Jr. ("Petitioner") constructively filed a Petition for Writ of Habeas Corpus by a Person in State custody pursuant to 28 U.S.C. § 2254 ("Petition"). (ECF No. 1.)*fn1

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.*fn2

II. PROCEDURAL HISTORY

On November 3, 2003, Petitioner was convicted after a jury trial in the Los Angeles County Superior Court of two counts of sexual penetration by foreign object (Cal. Penal Code § 289(a)(1)), forcible rape (Cal. Penal Code § 261(a)(2)), forcible oral copulation (Cal. Penal Code § 288a(c)(2)), and incest (Cal. Penal Code § 285). (Clerk's Transcript ("CT") at 279-82, 286.) Petitioner was also convicted of misdemeanor assault (Cal. Penal Code § 240), which was a lesser included offense to assault with intent to commit a felony. (Id. at 285.)

Petitioner waived jury trial on his prior convictions (Reporter's Transcript ("RT") at 407-10, 486-89) and, in a bifurcated proceeding, the trial court found true the allegations that he suffered three prior convictions, one of which qualified as an enhancement under California Penal Code sections 667.61(a) and (d), and all three of which qualified as strikes under California Penal Code sections 667(a)(1), 667(b)-(i), and1170.12(a)-(d). (Id. at 549-53.) On December 18, 2003, Petitioner was sentenced to a total state prison term of 210 years to life with the possibility of parole. (Id. at 562-63; CT at 491-92.)

Petitioner appealed the judgment to the California Court of Appeal. (Lodgment 3.) On September 8, 2004, the court of appeal affirmed the judgment, but remanded the case for resentencing pursuant to Blakely. (Lodgment 6 at 7, 11.)

On or about September 22, 2004, Petitioner filed a petition for review in the California Supreme Court. (Lodgment 7.) On December 1, 2004, the supreme court denied the petition. (Lodgment 8.)

On March 29, 2005, the matter was remanded to the trial court for resentencing. (Lodgment 16.) Petitioner was then sentenced to a total state prison term of thirty-three years. (Id. at 6; Lodgment 1.)

On or about June 16, 2005, Petitioner appealed again to the California Court of Appeal, arguing that his upper term and consecutive term sentences violated the Constitution. (Lodgment 9.) On October 26, 2005, the court of appeal affirmed Petitioner's conviction and sentence. (Lodgment 11.)

On October 14, 2005, Petitioner filed a habeas corpus petition in the California Supreme Court. (Lodgment 12.) On September 13, 2006, the supreme court denied the petition. (See California Supreme Court, Case No. S138174.)*fn3

On November 29, 2005, Petitioner filed a second petition for review in the California Supreme Court. (Lodgment 14.) On January 4, 2006, the supreme court denied the petition. (Lodgment 15.)

On September 29, 2005, Petitioner filed his first § 2254 petition in this District. (CV 05-7109 ECF No. 1.) On March 28, 2006, Petitioner filed a second § 2254 petition in this District. (CV 06-1856-DDP (OP) ECF No. 1.) On June 13, 2006, this Court consolidated both cases, and CV 05-7109 became the controlling case for all purposes. On May 1, 2007, Petitioner's Second Amended Petition ("SAP") became the operative pleading. On August 16, 2011, Judgment was entered denying the SAP and dismissing the action with prejudice. ...


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