United States District Court, C.D. California
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
AND ACTION WITHOUT PREJUDICE
HONORABLE JACQUELINE CHOOLJIAN UNITED STATES MAGISTRATE
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. 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).
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
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.
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.
thereafter sought, and was denied collateral relief in the
Riverside County Superior Court, the California Court of
Appeal, and the California Supreme Court.
First Federal Action, First Ninth Circuit Action, and Supreme
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.
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.
November 10, 2008, the United States Supreme Court denied
petitioner's petition for a writ of certiorari in the
Supreme Court Action.