United States District Court, C.D. California
Present: The Honorable KENLY KIYA KATO, UNITED STATES
ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE
SUMMARILY DISMISSED AS A SECOND AND SUCCESSIVE
Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
Kevin Gresham ("Petitioner") has filed a pro
se Petition for Writ of Habeas Corpus by a Person in
State Custody pursuant to Title 28 of the United States Code,
section 2254 ("Petition"). However, the Petition is
a second and successive petition subject to dismissal. Thus,
the Court orders Petitioner to show cause why the Petition
should not be dismissed.
STATE COURT PROCEEDINGS
August 12, 2008, Petitioner pled no contest to second degree
robbery in violation of California Penal Code section 211 and
a firearm enhancement within the meaning of California Penal
Code section 12022(a)(1) in the Los Angeles Superior Court.
ECF Docket No. ("Dkt.") 1, Pet. at 47-48,
66-67. Pursuant to his plea negotiation,
Petitioner received a sentence of twelve years of
imprisonment. Id. at 66-67.
fails to indicate whether he filed any direct appeal,
petition for review, or state habeas petition. See
Dkt. 1, Pet.
FEDERAL COURT PROCEEDINGS
1, 2014, Petitioner constructively filed a Petition for
Writ of Habeas Corpus by a Person in State Custody pursuant
to Title 28 of the United States Code, section 2254
("2014 Petition") challenging his 2008 conviction
and sentence. See EDCV 14-4453-MWF (KK) (C.D. Cal.
filed Jun. 10, 2014). In the 2014 Petition, Petitioner raised
two claims: (1) the waiver used in his plea agreement
contained "confusing language;" and (2) his
sentence was "procedurally improper." Id.
at Dkt. 1, Pet. at 5. On January 28, 2015, the Court entered
judgment denying the 2014 Petition. Id. at Dkt. 24,
26, 2016, Petitioner constructively filed the instant
Petition challenging his 2008 conviction and sentence.
See Dkt. 1, Pet. The Petition raises three claims:
(1) the California Court of Appeal or California Supreme
Court caused his petition for writ of mandate to be denied
improperly; (2) "Petitioner is serving an illegal
sentence;" and (3) the California Supreme Court denied
his petition for writ of habeas corpus improperly.
Id. at 4-26.
claim presented in a . . . successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed." 28 U.S.C. §
2244(b)(1). As for new claims, the United States Supreme
Court has held:
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) established a stringent set of procedures that a
prisoner "in custody pursuant to the judgment of a State
court, " 28 U.S.C. § 2254(a), must follow if he
wishes to file a "second or successive" habeas
corpus application challenging that custody, §
2244(b)(1). In pertinent part, before filing the application
in the district court, a prisoner "shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application." §
2244(b)(3)(A). A three-judge panel of the court of appeals
may authorize the filing of the second or successive