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Pierce v. Koenig

United States District Court, C.D. California

December 20, 2019

SEBREN A. PIERCE, Petitioner,
v.
CRAIG KOENIG, Warden, Respondent.

          ORDER SUMMARILY DISMISSING PETITION FOR LACK OF JURISDICTION AND DENYING A CERTIFICATE OF APPEALABILITY

          STEPHEN V. WILSON, UNITED STATES DISTRICT JUDGE

         On November 20, 2019, Sebren A. Pierce ("Petitioner") filed a petition for writ of habeas corpus by a person in state custody pursuant to 28 U.S.C. § 2254 ("Petition").

         PRIOR PROCEEDINGS

         On April 28, 2008, after a jury trial in San Bernardino County Superior Court Case No. FSB18868, Petitioner was convicted of nine counts of committing a lewd act upon a child (Cal. Penal Code § 288(a)) and one count of committing sexual penetration by foreign object of a child under the age of 14 (Cal. Penal Code § 289(j)) (the "State Court Conviction"). (Report and Recommendation of United States Magistrate Judge, filed April 10, 2013, in Pierce v. Lopez, Case No. EDCV 11-0641-GAF (JEM) ("R&R") at 2).[1] The trial court sentenced Petitioner to a determinate term of 50 years plus an indeterminate term of 750 years to life in state prison. (R&R at 2.)

         On April 22, 2011, Petitioner, proceeding prose, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 in this Court, Pierce v. Lopez, Case No. EDCV 11-0641-GAF (JEM) (the "First Petition"), challenging his State Court Conviction. (R&R at 1-2.) On April 10, 2013, the Magistrate Judge issued the R&R, recommending that the First Petition be dismissed with prejudice on the merits, (Id. at 47.) On May 28, 2013, the Court accepted the R&R, entered judgment dismissing the First Petition with prejudice, and denied a certificate of appealability. (See Pierce v. Lopez, Case No. EDCV 11 -0641-GAF (JEM) (Docket Nos. 37-39).)

         On December 16, 2013, Petitioner filed a second federal habeas petition in this Court, Pierce v. Gipson, Case No. EDCV 13-2311-GAF (JEM) ("Second Petition"), also challenging his State Court Conviction. (Order Summarily Dismissing Petition for Lack of Jurisdiction and Denying a Certificate of Appealability, filed March 17, 2014, in Pierce v. Gipson, Case No. EDCV 13-2311-GAF (JEM), at 1-2).[2] On March 17, 2014, judgment was entered dismissing the Second Petition without prejudice as a second or successive petition, (Id. at 3-5).

         On November 25, 2014, Petitioner filed a third federal habeas petition in this Court, Pierce v. Davey, Case No. EDCV 14-2437-MMM (JEM) ("Third Petition"), challenging his State Court Conviction. (Order Summarily Dismissing Petition for Lack of Jurisdiction and Denying a Certificate of Appealability, filed January 14, 2015, in Pierce v. Davey, Case No. EDCV 14-2437-MMM (JEM) at 1-3).[3] On January 14, 2015, judgment was entered dismissing the Third Petition without prejudice as a second or successive petition, (Id. at 4-5.)

         On September 30, 2019, Petitioner filed a fourth habeas petition in this Court, Pierce v. Koenig, Case No. EDCV 19-1875-SVW(JEM) ("Fourth Petition"), challenging his State Court Conviction. (Order Summarily Dismissing Petition for lack of Jurisdiction and Denying a Certificate of Appealability, filed October 17, 2019, in Pierce v. Koenig, EDCV 19-1875-SVW (JEM) at 3.)[4] On October 21, 2019, judgment was entered dismissing the Fourth Petition without prejudice as a second or successive petition, (Id. at 4-5.)

         On November 18, 2019, Petitioner filed the instant Petition, in which he again challenges the State Court Conviction.[5] (See Petition at 2.)

         DISCUSSION

         This Court has a duty to screen habeas corpus petitions. See Rules Governing § 2254 Cases in the United States District Courts, Rule 4 Advisory Committee Notes. Rule 4 requires a district court to examine a habeas corpus petition, and if it plainly appears from the face of the petition and any annexed exhibits that the petitioner is not entitled to relief, the judge shall make an order for summary dismissal of the petition. Id.; see also Local Rule 72-3.2. The notes to Rule 4 state: "'a dismissal may be called for on procedural grounds, which may avoid burdening the respondent with the necessity of filing an answer on the substantive merits of the petition.'" See Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989).

         I. THE PETITION IS SUBJECT TO SUMMARY DISMISSAL AS A SECOND OR SUCCESSIVE PETITION

         The Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA amended 28 U.S.C. § 2244(b) to read, in pertinent part, as follows:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior ...

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