United States District Court, C.D. California
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
AND ACTION WITHOUT PREJUDICE
HONORABLE DALE S. FISCHER, UNITED STATES DISTRICT JUDGE
I.
SUMMARY
On
December 3, 2019, petitioner Joseph Nichols, III, who is
proceeding pro se, formally filed a Petition under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person
in State Custody (“Current Federal Petition”).
The Current Federal Petition challenges petitioner's 1993
conviction and sentence in Los Angeles County Superior Court
No. PA007472 (“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 July
8, 1993, a Los Angeles County Superior Court jury convicted
petitioner of kidnapping for robbery, second degree robbery,
dissuading a witness by force or threat, and evading an
officer. The jury also found true allegations that petitioner
personally used a firearm in the commission of the foregoing
crimes. On direct appeal, the California Court of Appeal
struck a personal firearm use enhancement and a prior
conviction enhancement, but affirmed the judgment in all
other respects. The California Supreme Court denied review on
February 1, 1995.
Petitioner
thereafter sought, and was denied state habeas relief in the
Los Angeles County Superior Court, the California Court of
Appeal, and the California Supreme Court.
B.
First Federal Action (CDCA No. 99-10778) and First Ninth
Circuit Action (No. 00-56241)
On
November 15, 1999, petitioner formally filed the operative
first amended petition for writ of habeas corpus
(“First Federal Petition”) in the First Federal
Action, challenging the judgment in the State Case. On June
23, 2000, 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 June 23, 2000, 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 June 27, 2000, judgment was entered
accordingly.
On July
6, 2000, petitioner filed a notice of appeal. On December 28,
2000, in the First Ninth Circuit Action, the Ninth Circuit
denied petitioner's request for a certificate of
appealability.
C.
Second Federal Action (CDCA No. 06-3278) and Second Ninth
Circuit Action (No. 06-56075)
On May
26, 2006, petitioner filed a petition for writ of habeas
corpus (“Second Federal Petition”) in the Second
Federal Action, again challenging the judgment in the State
Case. On May 31, 2006, this Court summarily dismissed the
Second State Petition without prejudice as successive. On
July 3, 2006, this Court denied petitioner's motion to
vacate judgment.
On
August 1, 2006, after being afforded an extension of time,
petitioner filed a Notice of Appeal. On March 27, 2007, in
the Second Ninth Circuit Action, the Ninth Circuit denied
petitioner's request for a certificate of appealability.
D.
Third Federal Action ...