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Garcia v. Lizarraga

United States District Court, C.D. California

July 24, 2019

LENIN GARCIA, Petitioner,
v.
JOE A. LIZARRAGA, Respondent.

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

          HONORABLE CORMAC J. CARNEY UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         On July 15, 2019, petitioner Lenin Garcia, who is proceeding pro se, formally filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Current Federal Petition”) pursuant to 28 U.S.C. § 2254. The Current Federal Petition challenges petitioner's 1993 conviction and sentence in Los Angeles County Superior Court No. BA055027 (“State Case”).

         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 and this action are 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 (“Ninth Circuit”) pursuant to Ninth Circuit Rule 22-3(a).[1]

         II. PROCEDURAL HISTORY[2]

         A. State Proceedings

         On December 16, 1993, a jury in the State Case convicted petitioner of second degree robbery, attempted extortion, conspiracy to commit robbery, conspiracy to commit extortion, and two counts of kidnapping for ransom. The jury also found true allegations that the victims of the kidnappings suffered bodily harm. On February 3, 1994, the trial court sentenced petitioner to two consecutive terms of life in prison without the possibility of parole on the kidnapping counts, plus a consecutive term of five years on the robbery count. The imposition of sentence was stayed on the remaining counts.

         On April 1, 1996, on direct appeal, the California Court of Appeal reduced restitution fines imposed upon petitioner, but otherwise affirmed the judgment in No. B082499. Petitioner apparently did not further pursue a direct appeal.

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

         B. First Federal Action and First Ninth Circuit Action

         On April 29, 1998, petitioner formally filed a petition for writ of habeas corpus (“First Federal Petition”) in the First Federal Action, challenging the judgment in the State Case. On August 14, 1998, the assigned Magistrate Judge issued a Final Report and Recommendation of United States Magistrate Judge, recommending that the First Federal Action be dismissed with prejudice because the First Federal Petition was time-barred. On August 17, 1998, the assigned District Judge issued an Order Adopting Final Report and Recommendation of United States Magistrate Judge and dismissed the First Federal Petition with prejudice. On August 29, 1998, judgment was entered accordingly.

         On September 4, 1998, petitioner filed a notice of appeal. On November 19, 1998, in the First Ninth Circuit Action, the Ninth Circuit denied petitioner's request for a certificate of appealability.

         C. Second Ninth Circuit Action

         On or about April 1, 2003, in the Second Ninth Circuit Action, petitioner filed an application for leave to file a second or successive petition. On June 13, 2003, the ...


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