Perez v. Superior Court of California

          MEMORANDUM AND ORDER SUMMARILY DENYING PETITION AND DISMISSING ACTION

          HONORABLE STEPHEN V. WILSON United States District Judge.

         I.

         INTRODUCTION

         Petitioner Juan J. Perez (“Petitioner”) has filed a pro se Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”) challenging his 1996 conviction and sentence for second degree robbery. As discussed below, the Court finds the Petition is a second or successive petition and thus, summarily DENIES the Petition and DISMISSES this action without prejudice.

         II.

         BACKGROUND

         A. STATE COURT PROCEEDINGS

         On October 6, 1996, following a jury trial in California Superior Court for the County of Los Angeles, Petitioner was convicted of one count of second-degree robbery in violation of section 211 of the California Penal Code in No. BA143627. See ECF Docket No. (“Dkt.”) 1, Pet. at 2. On February 4, 1997, Petitioner was sentenced to twenty-five years to life for second-degree robbery, plus an enhancement for a prior serious or violent felony for a total of thirty-three years to life. Id.

         On August 22, 1997, Petitioner filed a direct appeal in the California Court of Appeal. See Cal. Courts, Appellate Courts Case Info., 2d Appellate Dist.: Docket, http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&docid=105 3465&docno=B114918&requesttoken=NiIwLSIkXkw%2BWyBRSCM9WE9J QFA6USxfIiNeIztRMCAgCg%3D%3D (last updated Feb. 26, 2018, 2:50 PM).^[1]The California Court of Appeal affirmed Petitioner's conviction with modifications on March 18, 1999, and issued a remittitur on May 25, 1999. Id.; see also Pet. at 2-3.

         In June 2015, Petitioner filed a habeas petition in the Los Angeles County Superior Court. See Perez v. Hatton, No. CV 16-2775-SVW (KK), 2016 WL 4072020, at *1 (C.D. Cal. June 7, 2016). On August 20, 2015, the Los Angeles County Superior Court denied the petition. See id.

         On October 19, 2015, Petitioner filed a habeas petition in the California Court of Appeal. See id. On November 13, 2015, the California Court of Appeal denied the petition. See id.

         On January 13, 2016, Petitioner filed a habeas petition in the California Supreme Court. See id. On March 30, 2016, the California Supreme Court denied the petition. See id.

         B. FEDERAL HABEAS PROCEEDINGS

         On April 17, 2016, Petitioner constructively filed a pro se Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“2016 Petition”) in this Court challenging his conviction for second-degree robbery in No. BA143627. Perez, 2016 WL 4072020, at *1. In the 2016 Petition, Petitioner raised the sole claim that he “suffered an illegal sentence on two strike priors.” Id. On July 26, 2016, the Court denied the 2016 Petition as ...