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Solan v. Chappell

United States District Court, Ninth Circuit

December 27, 2013

MAHADI SOLAN, Petitioner,
v.
KEVIN CHAPPELL, Warden, Respondent.

MEMORANDUM AND ORDER DENYING PETITION FOR LACK OF JURISDICTION

SUZANNE H. SEGAL, Magistrate Judge.

I.

INTRODUCTION

On September 19, 2013, [1] Mahadi Solan ("Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254. (Pet. at 19). Petitioner challenges his December 1997 conviction and sentence on one count of first degree burglary in violation of Cal. Penal Code ("Penal Code") § 460(a).[2] On September 24, 2013, Petitioner consented to the jurisdiction of the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636.[3] (Dkt. No. 3). On November 6, 2013, the Court issued an Order To Show Cause Why This Action Should Not Be Dismissed As Successive (the "Order to Show Cause" or "OSC"). However, as of the date of this Memorandum and Order, Petitioner has not filed a response to the OSC or any other document in this action. Accordingly, for the reasons discussed below, the Petition is DENIED for lack of jurisdiction and Judgment is entered dismissing this action without prejudice.

II.

PRIOR PROCEEDINGS[4]

After a bench trial in Riverside County Superior Court, case number INF 27418, Petitioner was convicted and sentenced on three counts of first degree burglary in violation of Penal Code § 459 and one count of receiving stolen property in violation of Penal Code § 496. (See Mahadi Solan v. Silvia Garcia, EDCV 00-00566 RT (BQR), Final Report and Recommendation ("2001 R&R"), Dkt. No. 14 at 3). The Court also found true that Petitioner had three prior convictions pursuant to California's Three Strikes Law, Penal Code §§ 667(c), 667 (e)(2), 667.5(b), and sentenced Petitioner to seventy-eight years to life imprisonment. (See id.). In a separate trial in Riverside County Superior Court, case number INF 27716, Petitioner was found guilty on one additional count of first degree burglary. Again, the Court found true that Petitioner had three prior strikes, and Petitioner was sentenced to forty years to life in state prison. (See id. at 3-4). The two cases were then consolidated for appeal in the California Court of Appeal, and on December 9, 1998, the court modified Petitioner's sentence but otherwise affirmed the trial court's judgments. (See id. at 4).

On September 30, 1999, Petitioner filed a habeas petition in the California Supreme Court claiming ineffective assistance of appellate counsel on direct review, which the supreme court denied on January 25, 2000.[5] (See id.).

Between July 10, 2000 and September 7, 2000, Petitioner filed six habeas petitions in this Court, case numbers EDCV 00-00566 RT (BQR), EDCV 00-00724 VAP (BQR), EDCV 00-00725 VAP (BQR), EDCV 00-00726 VAP (BQR), EDCV 00-00727 VAP (BQR) and EDCV 00-00728 VAP (BQR). (See id. at 3-4). On January 18, 2001, the six petitions were consolidated, (see id., Minute Order, Dkt. No. 11), and on April 23, 2001, the Magistrate Judge issued a Final Report and Recommendation denying Petitioner habeas relief. (See id., 2001 R&R). That same day, the District Judge adopted the Report and Recommendation and entered judgment dismissing Petitioner's claims. ( Id., Dkt. Nos. 15&16). On May 29, 2001 the District Judge denied Petitioner's request for a certificate of appealability. ( Id., Dkt. No. 17). Petitioner then requested a certificate of appealability from the Ninth Circuit, and, on September 28, 2001, the court of appeals deemed Petitioner's request withdrawn and denied it as moot. (Mahadi Solan v. Silvia Garcia, EDCV 00-00274 RT (BQR), Dkt. No. 28).

Over four years later, Petitioner filed four separate habeas petitions in the Central District between January 17, 2006 and March 9, 2006, case numbers EDCV 06-00049 MMM (SS), EDCV 06-00264 MMM (SS), EDCV 06-00267 MMM (SS) and EDCV 06-00268 MMM (SS). Each petition attacked the same convictions and sentences that Petitioner challenged in his earlier federal petitions. (See Mahadi Solan v. Giurbino, Warden, EDCV 06-00049 MMM (SS), Order Summarily Dismissing Petitions for Lack of Jurisdiction ("Dismissal Order"), Dkt. No. 7 at 4). The four petitions were consolidated on March 10, 2006, (see id., Order of Consolidation, Dkt. No. 6), and on March 15, 2006, the Court deemed the petitions successive and dismissed them for lack of jurisdiction. (See Dismissal Order). Petitioner did not seek a certificate of appealability from the Ninth Circuit. More than seven years later, Plaintiff filed the instant Petition on September 19, 2013.

III.

PETITIONER'S CLAIMS

Petitioner raises four grounds for federal habeas relief. (See Pet. at 5-10). However, the gravamen of each claim is essentially the same, i.e., that Petitioner was convicted and sentenced absent sufficient evidence that he committed the "entry" element of first degree burglary.[6] In Ground 1, Petitioner contends that his "alleged entry into said inhabited dwelling house was never shown by Deputy Sheriff nor established by Prosecution of any reasonable proof[.]" (Pet. at 5). In Ground 2, Petitioner alleges that the deputy sheriff "falsely imprisoned [him] without shown [sic] reasonable proof of Petitioner's entry[.]" (Id.). In Ground 3, Petitioner claims that the trial judge improperly found that Petitioner "entered" an inhabited dwelling. ( Id. at 10). Finally, in Ground 4, Petitioner argues that based on Grounds 1 through 3, he is being unlawfully imprisoned by the warden of the prison in which he is currently incarcerated. (Id.)

Because each ground attacks the sufficiency of the evidence that Petitioner committed the "entry" element of first degree burglary, the Court treats the Petition as though ...


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