Nichols v. Asuncion

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

          HONORABLE DALE S. FISCHER UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         On July 20, 2016, petitioner Joseph Nichols (“petitioner”), a California prisoner who is proceeding pro se, formally filed a Petition for Writ of Habeas Corpus (“Current Federal Petition”) with multiple voluminous attachments (Pet. Att.). The Current Federal Petition challenges petitioner’s 1993 conviction and sentence in Los Angeles County Superior Court Case No. PA007472 (“State Case”), asserting thirty-three (33) grounds for relief. (Petition at 2, 5-13; Pet. Att. A at i-44; Pet. Att. B at A-35; Pet. Att. C at A-76).

         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. PROCEDURAL HISTORY^[2]

         A. State Proceedings

         On July 8, 1993, a Los Angeles County Superior Court jury convicted petitioner of kidnapping for robbery, second degree robbery, dissuading a witness by force or threat, and evading an officer. The jury also found true allegations that petitioner personally used a firearm in the commission of the foregoing crimes.

         On direct appeal, the California Court of Appeal struck a personal firearm use enhancement and a prior conviction enhancement, but affirmed the judgment in all other respects. The California Supreme Court denied review on February 1, 1995.

         Petitioner thereafter sought, and was denied state habeas relief in the Los Angeles County Superior Court, the California Court of Appeal, and the California Supreme Court.

         B. First Federal Action and First Ninth Circuit Action

         On November 15, 1999, petitioner formally filed the operative first amended petition for writ of habeas corpus (“First Federal Petition”) in the First Federal Action, challenging the judgment in the State Case. On June 23, 2000, the assigned Magistrate Judge issued a Final Report and Recommendation of United States Magistrate Judge, recommending that the First Federal Action be dismissed with prejudice because the First Federal Petition was time-barred. On June 23, 2000, the assigned District Judge issued an Order Adopting Final Report and Recommendation of United States Magistrate Judge and dismissed the First Federal Petition with prejudice. On June 27, 2000, judgment was entered accordingly.

         On July 6, 2000, petitioner filed a notice of appeal. On December 28, 2000, in the First Ninth Circuit Action, the Ninth Circuit denied petitioner’s request for a certificate of appealability.

         C. Second Federal Action and Second Ninth Circuit Action

         On May 26, 2006, petitioner filed a petition for writ of habeas corpus (“Second Federal Petition”) in the Second Federal Action, again challenging the judgment in the State Case. On May 31, 2006, this Court summarily dismissed the Second State Petition without prejudice as successive. ...