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Zuniga v. BM Cash

United States District Court, C.D. California

February 10, 2014

JOSE JULIO ZUNIGA, Petitioner,
v.
B.M. CASH, Warden, Respondent.

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

STEPHEN V. WILSON, District Judge.

I.

INTRODUCTION

On November 8, 2013, Jose Julio Zuniga ("Petitioner") 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.) On January 15, 2014, Respondent filed a Motion to Dismiss the Petition as second and successive to a previously filed § 2254 petition, case number CV 06-337-SVW (OP), which challenged the same conviction herein. (ECF No. 10.)

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 successive.

II.

PROCEDURAL HISTORY

A. State Proceedings.

On November 4, 1999, Petitioner was convicted after a jury trial in the San Bernardino County Superior Court, case number FSB14826, of multiple counts of forcible lewd act on a child (Cal. Penal Code § 288(b)(1)) and one count of aggravated sexual assault of a child (Cal. Penal Code § 269(a)(4)). (Pet. at 2, unnumbered Ex. at 297-301; EDCV 06-337-SVW (OP) ECF Nos. 11, 12.) On December 6, 1999, Petitioner was sentenced to an aggregate term of imprisonment of seventy-one years to life in state prison. (Pet. at 3; EDCV 06-337-ECF Nos. 11, 12; Lodgment No. 2 at 2.)

On June 20, 2000, Petitioner filed a direct appeal with the California Court of Appeal which was denied on April 10, 2001. (EDCV 06-337 ECF Nos. 11, 12; Lodgments 1, 2.) On May 15, 2001, Petitioner filed a petition for review in the California Supreme Court which was denied on June 20, 2001. (Id.; Lodgments 4, 5.)

On February 19, 2005, Petitioner constructively filed a petition for writ of habeas corpus in the California Supreme Court which was denied on January 18, 2006, with citations to In re Robbins , 18 Cal.4th 770, 780 (1998), and In re Waltreus , 62 Cal.2d 218 (1965). (EDCV 06-337 ECF Nos. 11, 12; Lodgments 6, 7.)

B. Federal Habeas Proceedings.

On March 15, 2006, Petitioner constructively filed his first § 2254 petition in this Court. (Id. ECF No. 1.) On June 22, 2006, Respondent filed a Motion to Dismiss the Petition as untimely. (Id. ECF Nos. 6, 7.) In the petition, Petitioner challenged the same conviction he challenges herein, albeit on different grounds. (Compare Pet. at 5, 6; EDCV 06-337 ECF No. 1 at 5.)

On April 18, 2007, an Order and Judgment were entered denying the Petition and dismissing the action with prejudice. (EDCV 06-337 ECF Nos. 14, 15.) On May 29, 2007, an Order was entered denying the issuance of a certificate of appealability. (Id. ECF No. 17.) On April 7, 2008, an Order was entered by the Ninth Circuit also denying the issuance of a certificate of appealability. (Id. ECF No. 21.) There is no indication on the Court's docket or otherwise that Petitioner ...


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