United States District Court, C.D. California
Wesley J. Coleman
Dean Borders, et al.
PRESENT: HONORABLE SUZANNE H. SEGAL, UNITED STATES MAGISTRATE
CIVIL MINUTES - GENERAL
ENTRY: ORDER TO SHOW CAUSE WHY THE MAGISTRATE JUDGE SHOULD
NOT RECOMMEND THAT THIS ACTION BE DISMISSED AS SUCCESSIVE
April 23, 2018,  Wesley J. Coleman, a California state
prisoner proceeding pro se, constructively filed a
habeas petition pursuant to 28 U.S.C. § 2254 (the
“Petition”). Petitioner is challenging his August
9, 1999 conviction by a Los Angeles County jury for
possession of a firearm by a felon and felony evading.
(Petition at 2). The jury also found true that Petitioner had
sustained four prior serious or violent felony convictions
within the meaning of California's Three Strikes law.
See People v. Coleman, 2001 WL 1250396, at *1
(Cal.Ct.App. Oct. 18, 2001). Petitioner claims that he is
entitled to federal habeas relief because his sentence of
twenty-eight years to life is cruel and unusual, his trial
counsel was ineffective, and the jury did not find all the
facts essential to his punishment. (Id. at 5-6).
However, the Petition appears to be successive.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) applies to the instant Petition because
Petitioner filed it after AEDPA's effective date of April
24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997).
Under AEDPA, a petition is considered
“successive” if it challenges “the same
custody imposed by the same judgment of a state court”
as a prior petition. Burton v. Stewart, 549 U.S.
147, 153 (2007) (per curiam). AEDPA prohibits the filing of a
second or successive petition in district courts unless the
petitioner first obtains permission from the appropriate
court of appeals. See 28 U.S.C. § 2244(a)(3)(A)
(“Before a second or successive application permitted
by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the
application.”); see also Burton, 549 U.S. at
152-53 (quoting 28 U.S.C. § 2244(b)(3)(A)).
[a] prisoner asserts a claim [in a successive petition] that
he has already presented in a previous federal habeas
petition, the claim must be dismissed in all cases. And if
the prisoner asserts a claim that was not presented
in a previous petition, the claim must be dismissed unless it
falls within one of two narrow
exceptions.” Tyler v. Cain, 533 U.S. 656, 661
(2001). However, “[e]ven if a petitioner can
demonstrate that he qualifies for one of these exceptions, he
must [still] seek authorization from the court of appeals
before filing his new petition with the district
court.” Woods v. Carey, 525 F.3d 886, 888 (9th
instant Petition appears to challenge the same 1999
conviction and sentence that Petitioner has previously
challenged in this Court in at least three other
habeas petitions.In the first prior petition, filed on
January 27, 2004, Petitioner argued, among other grounds for
federal habeas relief, that his sentence was cruel and
unusual, his counsel was ineffective, and the court and the
prosecutor committed various instances of misconduct.
(See Wesley J. Coleman v. Pat Vasquez, CV 04-0573
DDP (CT) (“Prior Petition I”), as summarized in
Report and Recommendation, Dkt. No. 15 at 6-7). On July 6,
2004, the Court denied Prior Petition I as untimely, and, in
the alternative, on the merits, and dismissed the action with
prejudice. (See id. at 8-16 (timeliness analysis)
& 17-22 (merits analysis); Dkt. Nos. 20 (Order
Accepting), 21 (Judgment)). The Ninth Circuit denied
Petitioner's request for a certificate of appealability
on January 18, 2005. (See Dkt. No. 28).
filed the second prior petition on January 25, 2006. (See
Wesley J. Coleman v. P. Vasquez, CV 06-0463 DDP (CT)
(“Prior Petition II”)). The Court summarily
dismissed Prior Petition II as successive on February 23,
2006. (Id., Dkt. Nos. 3 (Memorandum Decision and
Order), 4 (Judgment)). The Ninth Circuit denied
Petitioner's request for a certificate of appealability
on November 24, 2006. (Dkt. No. 10).
filed the third prior petition on November 19, 2008. (See
Wesley J. Coleman v. Pat Vasques [sic], CV 08-7624 DDP
(CT) (“Prior Petition III”)). The Court dismissed
Prior Petition III as successive on May 27, 2009.
(Id., Dkt. Nos. 4 (Memorandum Decision and Order), 5
(Judgment)). The Ninth Circuit denied Petitioner's
request for a certificate of appealability on November 19,
2010. (Id., Dkt. No. 10).
the instant Petition is the fourth habeas petition
that Petitioner has filed in this Court challenging the same
1999 conviction and sentence, the Petition appears
successive. Petitioner must therefore obtain
permission from the Ninth Circuit before this Court can
adjudicate any challenge arising from that conviction. 28
U.S.C. § 2244(b)(3)(A). Based on the Court's review
of the docket, Petitioner has neither requested nor received
permission from the Ninth Circuit to file the Petition.
Accordingly, the Court appears to lack jurisdiction to
adjudicate the instant Petition. See Burton, 549
U.S. at 157.
therefore is ORDERED TO SHOW CAUSE, within fourteen (14)
days of the date of this Order, why this Court should
not recommend that the Petition be dismissed without
prejudice as successive. Petitioner may satisfy this Order to
Show Cause by filing a response and/or declaration setting
forth any reason the instant Petition is not barred as
successive. After the Court receives a response to the Order
to Show Cause, it may prepare a Report and Recommendation for
submission to the District Judge. This Order is not
dispositive of any of Petitioner's claims.
addition, the Court notes that this is Petitioner's
fourth attempt to challenge the same 1999 conviction
and sentence based on essentially the same grounds. The Court
has repeatedly explained that Petitioner's claims are
untimely (Prior Petition I) and successive (Prior Petitions
II and III), and that the Court lacks jurisdiction to hear
any future challenges to Petitioner's 1999 conviction and
sentence unless and until Petitioner obtains prior approval
to file a successive petition from the Ninth Circuit.
Petitioner has obstinately refused to accept the Court's
rulings. Therefore, the Court cautions Petitioner that if he
attempts to challenge his 1999 conviction and sentence in
this Court in any future frivolous filings in defiance of the
Court's prior rulings, the Court may recommend the
imposition of sanctions, including, but not limited to, that
Petitioner be deemed a vexatious litigant.
of filing a response to this Order to Show Cause, Petitioner
may request a voluntary dismissal of this action pursuant to
Federal Rule of Civil Procedure 41(a). A Notice of
Dismissal form is attached for Petitioner's
convenience. Petitioner, however, is advised that any
dismissed claims may be later subject to the statute of
limitations under 28 U.S.C. § 2244(d)(1), as amended by
the AEDPA, which provides that “[a] 1-year period of
limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a
State court.” Petitioner is expressly warned that
failure to timely file a response to this Order to Show Cause
may result in a recommendation that this action be dismissed
with prejudice for failure to prosecute and obey Court
orders. See Fed.R.Civ.P. 41(b).
Clerk of Court is directed to serve a copy of this Order to
Show Cause on ...