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Smith v. S. Hatton

United States District Court, C.D. California

February 17, 2017

ALWIN SMITH, Petitioner,
v.
S. HATTON, Respondent.

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

          HONORABLE JACQUELINE CHOOLJIAN UNITED STATES MAGISTRATE JUDGE.

         I. SUMMARY

         On February 14, 2017, petitioner Alwin Smith (“petitioner”), a California prisoner who is proceeding pro se, formally filed a Petition for Writ of Habeas Corpus (“Current Federal 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 Federal Petition challenges a judgment in Riverside County Superior Court Case No. RIF091436 (“State Case” or “State Conviction”). (Petition at 2, 5-6). More specifically, petitioner appears to contend that his sentence in the State Case was improperly enhanced by certain prior convictions based upon impermissibly vague state statutes which defined such prior convictions as violent and serious felonies. (Petition at 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 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).[2]

         II. PROCEDURAL HISTORY[3]

         A. State Proceedings

         In November 2000, a Riverside County Superior Court jury found petitioner guilty of one count of second degree robbery (Cal. Penal Code § 211) and one count of possession of cocaine (Cal. Health & Safety Code § 11350). Upon petitioner's waiver of his right to a jury trial on enhancement allegations, the trial court found true allegations that petitioner had suffered four prior strike convictions (Cal. Penal Code §§ 667(c), 667(e), 1170.12(c)), three prior serious felony convictions (Cal. Penal Code § 667(a)), and two prior prison terms (Cal. Penal Code § 667.5(b)). The trial court sentenced petitioner to a total of 65 years to life, which consisted of two 25-years-to-life terms for each current offense and three five-year terms for each serious felony enhancement.

         On January 11, 2002, the California Court of Appeal affirmed the judgment, but directed that the abstract of judgment be modified to (1) reflect that the trial court sentenced petitioner to three five-year terms for the prior serious felony enhancements (Cal. Penal Code § 667(a)), rather the prior prison terms (Cal. Penal Code § 667.5(b)); and (2) strike the prior prison term enhancements which the trial court had merely stayed. On March 20, 2002, the California Supreme Court denied review.

         Petitioner thereafter sought, and was denied collateral relief in the Riverside County Superior Court, the California Court of Appeal, and the California Supreme Court.

         B. First Federal Action, First Ninth Circuit Action, and Supreme Court Action

         On March 9, 2004, petitioner filed the First Federal Petition challenging the State Conviction on the multiple grounds. On March 21, 2006, the assigned Magistrate Judge issued a Report and Recommendation recommending that the First Federal Petition be denied on the merits. On August 10, 2006, the assigned District Judge adopted the Report and Recommendation, denied the First Federal Petition, and dismissed the First Federal Action with prejudice. Judgment was entered accordingly the next day.

         On April 3, 2008, the Ninth Circuit denied petitioner's request for a certificate of appealability in the First Ninth Circuit Action. On June 24, 2008, the Ninth Circuit denied petitioner's motion for reconsideration.

         On November 10, 2008, the United States Supreme Court denied petitioner's petition for a writ of certiorari in the Supreme Court Action.

         C. Second ...


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