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Coleman v. Borders

United States District Court, C.D. California

May 23, 2018

Wesley J. Coleman
v.
Dean Borders, et al.

          PRESENT: HONORABLE SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE

          CIVIL MINUTES - GENERAL

         DOCKET ENTRY: ORDER TO SHOW CAUSE WHY THE MAGISTRATE JUDGE SHOULD NOT RECOMMEND THAT THIS ACTION BE DISMISSED AS SUCCESSIVE

         PROCEEDINGS: (IN CHAMBERS)

         On April 23, 2018, [1] 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.

         The 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)).

         “If [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.”[2] 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 Cir. 2008).

         The 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.[3]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).

         Petitioner 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).

         Petitioner 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).

         Because 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.[4] 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.[5] See Burton, 549 U.S. at 157.

         Petitioner 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.

         In 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.

         Instead 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).

         The Clerk of Court is directed to serve a copy of this Order to Show Cause on ...


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