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Bush v. Koenig

United States District Court, C.D. California

September 9, 2019

THOMAS LOUIS BUSH, Petitioner,
v.
C. KOENIG, Warden, Respondent.

          OPINION AND ORDER ON SECOND OR SUCCESSIVE PETITION

          Dolly M. Gee United States District Judge

         Because Petitioner previously challenged the same underlying state-court judgment in a prior habeas action that the Court dismissed with prejudice, and because Petitioner lacks Ninth Circuit authorization to file a second or successive habeas petition, the Court lacks jurisdiction over the matter.

         I.

         PROCEDURAL BACKGROUND

         Pursuant to Fed.R.Evid. 201, the Court takes judicial notice of the records in Petitioner's prior federal habeas corpus action in the Central District of California.

         On July 2, 1996, an Orange County Superior Court jury found Petitioner guilty of two counts of second-degree robbery (counts 1 and 2), two counts of assault with a firearm (counts 4 and 5), and one count of being a felon in possession of a firearm (count 6). The jury found true firearm enhancement allegations and also found true that Petitioner suffered prior felony convictions. In 1997, Petitioner was sentenced to 92-years-to-life in prison under California's Three Strikes law. (Case No. 95CF2440.) The California Court of Appeal affirmed the judgment on January 28, 1999. (Case No. G020389.) On April 14, 1999, the California Supreme Court summarily denied a petition for review. (Case No. S076995.)

         On April 13, 2000, an Orange County Superior Court issued a reasoned decision denying a state habeas petition. On May 25, 2000, the California Court of Appeal summarily denied a state habeas petition. On November 29, 2000, the California Supreme Court denied a state habeas petition. (Case No. S090542.)[1]

         A. Bush I:CV 01-00264

         On March 2, 2001, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition"), pursuant to 28 U.S.C. § 2254, before this Court in Bush v. Calderon, No. SACV 01-00264-AHS (JWJ) (CD. Cal. Mar. 2, 2001) ("Bush I"). On April 23, 2001, Petitioner filed a first amended petition raising the following five grounds for relief: (1) the trial court erred in deciding that Petitioner's 1989 convictions constituted prior serious or violent felony offenses under California's Three Strikes law; (2) ineffective assistance of trial counsel based on failure to file a motion to strike prior 1989 convictions; (3) ineffective assistance of trial counsel based on failure to file a motion to dismiss robbery charges for insufficient evidence; (4) prosecution violated fourteenth amendment rights by offering witnesses leniency in exchange for testimony and ineffective assistance of counsel based on failure to challenge prosecutorial leniency; and (5) the trial court erroneously imposed full-term consecutive sentences for firearm use enhancements pursuant to Cal. Penal Code Section 12022.5. (Bush I, Dkt. No. 32 at 5.)[2]

         On July 24, 2002, the magistrate judge issued a Report finding that Petitioner was not entitled to habeas relief on any of the grounds raised and recommended that judgment be entered denying the first amended petition on the merits and dismissing the action with prejudice. (Id., Dkt. No. 32 at 6-22.)

         On September 10, 2002, the district judge entered an order accepting the Report's findings and recommendations and entered judgment dismissing the action with prejudice. (Id., Dkt. Nos. 34-35.) On November 13, 2002, the district judge denied a Certificate of Appealability. (Id., Dkt. No. 40.) On May 14, 2003, the Ninth Circuit denied a request for a Certificate of Appealability. (Id., Dkt. Nos. 44-45; Case No. 02-56945.)

         B. State Habeas Petitions Filed on Collateral Review

         The California Court of Appeal summarily denied state habeas petitions on November 13, 2015, September 15, 2016, March 15, 2018, and September 13, 2018.[3]

         According to Petitioner, an Orange County Superior Court denied a state habeas petition on August 8, 2018 in case ...


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