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Brock v. Gastelo

United States District Court, C.D. California

April 27, 2017

MICHAEL BROCK, Petitioner,
v.
J. GASTELO, Respondent.

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

          HONORABLE JACQUELINE CHOOLJIAN UNITED STATES MAGISTRATE JUDGE

         I. SUMMARY

         On April 25, 2017, petitioner Michael Brock (“petitioner”), a California prisoner who is proceeding pro se, formally filed a Petition for Writ of Habeas Corpus (the “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 state judgment entered in 2000 following petitioner's guilty plea in Barstow, California, in San Bernardino County Superior Court Case No. FBA04003 (the “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 is denied and this action is 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 (the “Ninth Circuit”) pursuant to Ninth Circuit Rule 22-3(a).[2]

         II. PROCEDURAL HISTORY[3]

         A. State Conviction, Direct Appeal, and State Habeas Petitions

         On or about July 10, 2000, petitioner pleaded guilty to one count of first degree murder. The San Bernardino County Superior Court sentenced petitioner to 25 years to life in state prison in accordance with the plea agreement. Petitioner had faced a potential sentence of life without the possibility of parole.

         On February 14, 2002, the Court of Appeal affirmed the judgment on direct appeal in a reasoned decision. Petitioner did not petition the California Supreme Court for review of the Court of Appeal's decision.

         Petitioner thereafter sought, and was denied habeas relief in the San Bernardino County Superior Court, the California Court of Appeal, and the California Supreme Court.

         B. First Federal Action/First Ninth Circuit Action/Supreme Court Action

         On November 12, 2009, in the First Federal Action, petitioner formally filed the First Federal Petition in which he challenged the judgment in the State Case on multiple grounds. On April 9, 2014, judgment was entered dismissing the First Federal Petition with prejudice as untimely.

         On February 6, 2015, the Ninth Circuit denied petitioner's request for a certificate of appealability in the First Ninth Circuit Action. On March 15, 2015, the Ninth Circuit denied petitioner's motions for reconsideration.

         On October 13, 2015, the U.S. Supreme Court denied petitioner's motion to file a petition for writ of certiorari out of time in the Supreme Court Action.

         C. Second Federal Petition/Second ...


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