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Rodriguez v. Sherman

United States District Court, C.D. California

February 27, 2015

JOSE GELITO RODRIGUEZ, Petitioner,
v.
STU SHERMAN, Warden, Respondent.

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND ACTION WITHOUT PREJUDICE

JACQUELINE CHOOLJIAN, Magistrate Judge.

I. SUMMARY

On February 24, 2015, petitioner Jose Gelito Rodriguez ("petitioner"), a California prisoner who is proceeding pro se, formally filed a Petition for Writ of Habeas Corpus ("Current Federal Petition") with exhibits ("Petition Exhibits" or "Petition Ex.") and an Election Regarding Consent to Proceed Before a United States Magistrate Judge which reflects that he voluntarily consents to have a United States Magistrate Judge conduct all further proceedings in this case, decide all dispositive and non-dispositive matters, and order the entry of final judgment.[1]

The Current Federal Petition challenges petitioner's 1984 conviction following a guilty plea in Los Angeles County Superior Court Case No. A384310 ("State Case" or "State Conviction").

Based on the record (including facts as to which this Court takes judicial notice as detailed below) and the applicable law, the Current Federal Petition and this action are dismissed without prejudice for lack of jurisdiction because petitioner did not obtain the requisite authorization from the Court of Appeals to file a successive petition. Further, the Clerk of the Court is directed to refer the Current Federal Petition to the United States Court of Appeals for the Ninth Circuit (the "Ninth Circuit") pursuant to Ninth Circuit Rule 22-3(a).[2]

II. PROCEDURAL HISTORY[3]

A. State Conviction, Direct Appeal, and State Habeas Petitions

On June 15, 1984, petitioner pleaded guilty to second degree murder in Los Angeles County Superior Court. Petitioner thereafter sought to withdraw his guilty plea. On July 20, 1984, the trial court denied petitioner's motion to withdraw his guilty plea, and sentenced petitioner to fifteen years to life in prison. Petitioner attempted to file a notice of appeal on August 20, 1984, but was notified that the appeal would not be perfected absent a certificate of probable cause. Such a certificate was never granted.[4]

On September 10, 1993, petitioner filed a habeas petition in the California Supreme Court which was denied on October 27, 1993.

On or about April 11, 1997, petitioner filed a habeas petition in the Los Angeles County Superior Court which was denied on April 30, 1997.

On or about August 29, 2005, petitioner filed another habeas petition in Los Angeles County Superior Court which was denied on September 27, 2005.

On October 17, 2005, petitioner filed a habeas petition in the California Court of Appeal which was denied on October 26, 2005.

On November 30, 2005, petitioner filed a habeas petition in the California Supreme Court which was denied on August 30, 2006.

On May 13, 2007, petitioner filed another habeas petition in the California Court of Appeal which ...


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