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Nash v. Border

United States District Court, C.D. California

July 23, 2019

JARVIN O'NEAL NASH, Petitioner,
v.
DEAN BORDER, Warden, Respondent.

          ORDER OF DISMISSAL

          FERNANDO M. OLGUIN UNITED STATES DISTRICT JUDGE

         BACKGROUND

         On July 12, 2019, Jarvin O'Neal Nash (“Petitioner”), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). (Docket Entry No. 1). Petitioner challenges his 2005 conviction for attempted first degree robbery and the resulting 25-years-to-life sentence in the Los Angeles County Superior Court (No. FSB045154). The Petition alleges numerous claims, including ineffective assistance of trial counsel, ineffective assistance of appellate counsel, insufficiency of the evidence, prosecutorial misconduct, actual innocence, and the Superior Court's abuse of discretion in not allowing Petitioner to proceed with a successive habeas petition. (See Petition at 6-10, 15, 20, 24, 28-59)[1].

         On February 5, 2008, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, challenging the same conviction and sentence. See Jarvin O'Neal Nash v. V.M. Almager, No. EDCV 08-00149-MMM (VBK); Docket Entry No. 1 (“prior habeas action”). On October 30, 2009, the district court issued an Order and Judgment denying that habeas petition with prejudice, in accordance with the findings and recommendations of the assigned Magistrate Judge. (Id.; Docket Entry Nos. 17-19).

         DISCUSSION

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), enacted on April 24, 1996, provides in pertinent part that:

(a) No. circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in §2255.
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.
(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.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a ...

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