Jose Felipe Velasco v. Craig Koenig

• Court: District Court, C.D. California
• Decided: November 1, 2020
• Docket: 8:20-cv-01889
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE FELIPE VELASCO, NO. SACV 20-1889-JLS (AGR) 12 Petitioner, OPINION AND ORDER ON 13 SECOND OR SUCCESSIVE v. 14 PETITION; ORDER TRANSFERRING MOTION TO NINTH CIRCUIT 15 CRAIG KOENIG, Warden,

16 Respondent. 17

18 Because Petitioner previously challenged the same underlying state-court 19 judgment in a prior habeas action that the Court dismissed with prejudice, and 20 because Petitioner lacks Ninth Circuit authorization to file a second or successive 21 habeas petition, the Court lacks jurisdiction over the Petition for Writ of Habeas 22 Corpus. 23 I. 24 PROCEDURAL HISTORY 25 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the records 26 in Petitioner’s prior federal habeas corpus action in the Central District of 27 28 1 California in Velasco v. Allison, No. SACV 12-1011-JLS (AGR) (C.D. Cal.) 2 (“Velasco I”). 3 On April 2, 2009, a Los Angeles County Superior Court jury convicted 4 Petitioner of committing a lewd act upon a child, a lewd act upon a child under the 5 age of 14, and eight counts of rape. The jury found true that Petitioner committed 6 rape against more than one victim. On June 5, 2009, the trial court sentenced 7 Petitioner to 123 years to life. On January 27, 2011, the California Court of 8 Appeal affirmed the convictions. On April 13, 2011, the California Supreme Court 9 summarily denied Petitioner’s petition for review. People v. Velasco, Case No. 10 G042281, 2011 Cal. App. Unpub. LEXIS 645, at *1-*3 (Jan. 27, 2011); Report at 2-3 (Velasco I, Dkt. No. 24).1 11 On June 20, 2012, Petitioner filed a Petition for Writ of Habeas Corpus by a 12 Person in State Custody (“Petition”), pursuant to 28 U.S.C. § 2254, in Velasco I. 13 (Dkt. No. 1.) The magistrate judge issued a Report and Recommendation 14 (“Report”) that recommended that judgment be entered denying the petition and 15 dismissing the action with prejudice. (Velasco I, Dkt. No. 24.) On March 24, 16 2014, the Court entered an order accepting the Report, entered judgment denying 17 the Petition and dismissing the action with prejudice, and also denied a Certificate 18 of Appealability. (Id., Dkt. Nos. 26-28.) On March 24, 2016, the Ninth Circuit 19 affirmed. Velasco v. Allison, 645 Fed. Appx. 598 (9th Cir.), cert. denied, 137 S. Ct. 20 379 (2016). 21 On September 28, 2020, Petitioner filed a Motion for Permission to File 22 Attached 2254 Petition With Newly Discovered Evidence, along with a Petition for 23 Writ of Habeas Corpus. Velasco v. Koenig, Case No. SACV 20-1889 JLS (AGR) 24 25

26 1 Citations are to the page and document numbers generated by the Case Management/Electronic Case Filing (“CM/ECF”) system in the 27 header of the documents. 28 1 (“Velasco II”). (Dkt. Nos. 1, 3.) Petitioner again challenged the same state court 2 conviction and sentence that he previously challenged in Velasco I. 3 II. 4 DISCUSSION 5 The Petition was filed after enactment of the Antiterrorism and Effective 6 Death Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA 7 in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997). 8 The AEDPA provides, in pertinent part: “Before a second or successive 9 application permitted by this section is filed in the district court, the applicant shall 10 move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). A district court does not 11 have jurisdiction to consider a “second or successive” Petition absent 12 authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152 (2007). 13 The instant Petition is second or successive because Petitioner again 14 challenges the same state court conviction and sentence that he previously 15 challenged in Velasco I. A Petition is second or successive “if the facts 16 underlying the claim occurred by the time of the initial petition” and “if the petition 17 challenges the same state court judgment as the initial petition.” Brown v. Muniz, 18 889 F.3d 661, 667 (9th Cir. 2018), cert. denied Brown v. Hatton, 139 S.Ct. 841 19 (2019); see also Magwood v. Patterson, 561 U.S. 320, 332 (2010). Thus, the 20 instant Petition is second or successive. 21 A review of the Ninth Circuit’s online database indicates that Petitioner has 22 not received authorization from the Ninth Circuit Court of Appeals to file a second 23 or successive Petition. See Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 24 2001) (“When the AEDPA is in play, the district court may not, in the absence of 25 proper authorization from the court of appeals, consider a second or successive 26 habeas application.”) (citation and quotation marks omitted). 27 28 1 Rule 4 of the Rules Governing Section 2254 Cases in the United States 2 | Courts provides that “[i]f it plainly appears from the face of the petition and any 3 | attached exhibits that the petitioner is not entitled to relief in the district court, the 4 | judge must dismiss the petition and direct the clerk to notify the petitioner.” The 5 | Court therefore dismisses the Petition as a second or successive Petition for 6 | which it lacks jurisdiction. 7 ll. 8 ORDER g | IT IS THEREFORE ORDERED that Judgment be entered summarily dismissing 19 | the Petition and action for lack of subject matter jurisdiction. 1] | [TIS FURTHER ORDERED that the Motion for Permission to File Attached 2254 2 Petition With Newly Discovered Evidence is transferred to the Ninth Circuit 13 14 DATED: November 1, 2020 15 16 helt JOSEPHINE L STATON. 18 United States District Judge 19 20 21 22 23 24 25 26 27 28