Cole v. Holland

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

          HONORABLE S. JAMES OTERO UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         On June 3, 2016 and June 10, 2016, respectively, petitioner Walter Lee Cole (“petitioner”), a California prisoner who is proceeding pro se, formally filed a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody with attachments and an Addendum with attachments (collectively “Current Federal Petition”) in the Eastern District of California. The case was subsequently transferred to the Central District of California and assigned to this Court. The Current Federal Petition challenges a 1982/1983 conviction/judgment in Los Angeles County Superior Court Case No. A903092 (“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 (“Ninth Circuit”) pursuant to Ninth Circuit Rule 22-3(a).^[1]

         II. PERTINENT PROCEDURAL HISTORY^[2]

         A. The State Case

         On November 23, 1982, petitioner was convicted of second degree murder with a two-year firearm enhancement. On October 6, 1983, the court sentenced petitioner to a total term of seventeen years to life in state prison. The California Court of Appeal thereafter affirmed the judgment. The California Supreme Court thereafter denied review. Petitioner appears to have sought, and been denied post-conviction relief in state court on multiple occasions.

         B. Prior Federal Petition/Prior Federal Action and Ninth Circuit Action

         On February 4, 2008, petitioner formally filed the Prior Federal Petition. On August 20, 2008, the assigned Magistrate Judge issued a Report and Recommendation (“Prior R&R”) recommending that the Prior Federal Petition be dismissed with prejudice because it was untimely. On September 23, 2008, the assigned District Judge accepted and adopted the Prior R&R and ordered that judgment be entered dismissing the Prior Federal Petition with prejudice. Judgment was entered accordingly on September 24, 2008.

         On October 6, 2008, petitioner filed a Notice of Appeal. On September 28, 2009, the Ninth Circuit denied petitioner’s request for a certificate of appealability in the Ninth Circuit Action.

         C. Current Federal Petition

         As noted above, on June 3, 2016 and June 10, 2016, petitioner formally filed the Current Federal Petition. Though petitioner frames his claims in the Current Federal Petition as challenges to the California Supreme Court’s most recent rejection of a state habeas petition challenging the judgment in the State Case, petitioner again effectively challenges the judgment in the State Case.

         The record does not reflect that petitioner has obtained authorization from the Ninth Circuit to file the Current Federal Petition in District Court.^[3]

         III. ...