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Smith v. Beard

United States District Court, C.D. California

May 12, 2015

DELBERT J. SMITH, Petitioner,
v.
JEFFERY BEARD, Respondent.

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND ACTION WITHOUT PREJUDICE AND DIRECTING CLERK TO REFER PETITION TO NINTH CIRCUIT

JACQUELINE CHOOLJIAN, Magistrate Judge.

I. SUMMARY

On May 12, 2015, petitioner Delbert J. Smith ("petitioner"), a California prisoner who is proceeding pro se, formally filed a Petition for Writ of Habeas Corpus ("Current Petition") 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 Petition challenges a 2007 Riverside County Superior Court criminal judgment in Case No. SWF-013195 ("State Case" or "State Conviction"). (Petition at 2, 5-6).

Based on the record (including facts as to which this Court takes judicial notice as detailed below) and the applicable law, the Current 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 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. Conviction, Sentencing and Direct Appeal

On September 8, 2005, the District Attorney of Riverside County filed an Information charging petitioner with four counts of robbery (Cal. Penal Code § 211) and one count of endangering the health of a child (Cal. Penal Code § 273a(a)). The Information further alleged that petitioner personally used a firearm in the commission of all of the charged offenses (Cal. Penal Code §§ 1192.7(c)(8), 12022.5(a), 12022.53(b)) ("firearm enhancements").

On April 19, 2007, pursuant to a plea agreement, petitioner pleaded guilty to all of the charges and admitted all of the firearm enhancements.

On June 13, 2007, the trial court sentenced petitioner to state prison for twenty-two years and four months.

Petitioner did not pursue a direct appeal.

B. State Post-Conviction Petitions

1. First Round

On February 20, 2012, petitioner constructively filed a habeas petition in Riverside County Superior Court, which was denied on June 1, 2012.

On June 13, 2012, petitioner constructively filed a habeas petition in the California Court of Appeal, ...


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