1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JOSEPH NICHOLS, III, ) Case No. 2:19-cv-10235-DSF-JC 11 ) Petitioner, ) 12 ) ORDER DISMISSING PETITION v. ) FOR WRIT OF HABEAS 13 ) CORPUS AND ACTION CHRISTIAN PFEIFFER, Warden, ) WITHOUT PREJUDICE 14 ) ) 15 Respondent. ) ________________________________ ) 16 I. SUMMARY 17 On December 3, 2019, petitioner Joseph Nichols, III, who is proceeding pro 18 se, formally filed a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by 19 a Person in State Custody (“Current Federal Petition”). The Current Federal 20 Petition challenges petitioner’s 1993 conviction and sentence in Los Angeles 21 County Superior Court Case No. PA007472 (“State Case”). 22 Based on the record (including facts as to which this Court takes judicial 23 notice as detailed below) and the applicable law, the Current Federal Petition and 24 this action are dismissed without prejudice for lack of jurisdiction because 25 petitioner did not obtain the requisite authorization from the Court of Appeals to 26 file a successive petition. Further, the Clerk of the Court is directed to refer the 27 /// 28 1 Current Federal Petition to the United States Court of Appeals for the Ninth Circuit 2 (“Ninth Circuit”) pursuant to Ninth Circuit Rule 22-3(a).1 3 II. PROCEDURAL HISTORY2 4 A. State Proceedings 5 On July 8, 1993, a Los Angeles County Superior Court jury convicted 6 petitioner of kidnapping for robbery, second degree robbery, dissuading a witness 7 by force or threat, and evading an officer. The jury also found true allegations that 8 petitioner personally used a firearm in the commission of the foregoing crimes. 9 /// 10 11 1Ninth Circuit Rule 22-3(a) provides in pertinent part: “Any petitioner seeking 12 authorization to file a second or successive 2254 petition . . . in the district court must file an application in the Court of Appeals demonstrating entitlement to such leave under 28 U.S.C. 13 § 2254 . . . . If a second or successive petition . . . is mistakenly submitted to the district court, the district court shall refer it to the [C]ourt of [A]ppeals.” 14 15 2The facts and procedural history set forth in this section are derived from the Current Federal Petition and supporting documents and dockets/court records in the following Central 16 District of California (“CDCA”) and Ninth Circuit cases of which this Court takes judicial notice: (1) Nichols v. Small, CDCA Case No. 99-10778 LGB(SH) (“First Federal Action”); 17 (2) Nichols v. Evans, CDCA Case No. 06-3278 DSF(SH) (“Second Federal Action”); (3) 18 Nichols v. Evans, CDCA Case No. 06-4168 DSF(SH) (“Third Federal Action”); (4) Nichols v. Evans, CDCA Case No. 06-4481 DSF(SH) (“Fourth Federal Action”); (5) Nichols v. Hedgpeth, 19 CDCA Case No. 09-5418 DSF(SH) (“Fifth Federal Action”); (6) Nichols v. Hedgpeth, CDCA Case No. 11-10181 DSF(SH) (“Sixth Federal Action”); (7) Nichols v. Soto, CDCA Case No. 14- 20 6345 DSF(SH) (“Seventh Federal Action”); (8) Nichols v. Asuncion, CDCA Case No. 16-5405 21 DSF(JC) (“Eighth Federal Action”); (9) Nichols v. Arnold, CDCA Case No. 17-8490 DSF(JC) (“Ninth Federal Action”); (10) Nichols v. Arnold, CDCA Case No. 17-9271 DSF(JC) (“Tenth 22 Federal Action”); (11) Nichols v. Pfeiffer, CDCA Case No. 19-4433 DSF(JC) (“Eleventh 23 Federal Action”); (12) Nichols v. Pfeiffer, CDCA Case No. 19-6356 DSF(JC) (“Twelfth Federal Action”); (13) Nichols v. Small, Ninth Circuit Case No. 00-56241 (“First Ninth Circuit Action”); 24 (14) Nichols v. Evans, Ninth Circuit Case No. 06-56075 (“Second Ninth Circuit Action”); (15) Nichols v. Hedgpeth, Ninth Circuit Case No. 10-55412 (“Third Ninth Circuit Action”); 25 (16) Nichols v. Hedgpeth, Ninth Circuit Case No. 11-56735 (“Fourth Ninth Circuit Action”); 26 (17) Nichols v. Asuncion, Ninth Circuit Case No. 16-72582 (“Fifth Ninth Circuit Action”); and (18) Nichols v. Pfeiffer, Ninth Circuit Case No. 19-71334 (“Sixth Ninth Circuit Action”). See 27 Fed. R. Evid. 201; Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (court 28 may take judicial notice of undisputed matters of public record including documents on file in federal or state courts). 2 1 On direct appeal, the California Court of Appeal struck a personal firearm 2 use enhancement and a prior conviction enhancement, but affirmed the judgment in 3 all other respects. The California Supreme Court denied review on February 1, 4 1995. 5 Petitioner thereafter sought, and was denied state habeas relief in the Los 6 Angeles County Superior Court, the California Court of Appeal, and the California 7 Supreme Court. 8 B. First Federal Action (CDCA Case No. 99-10778) and First Ninth 9 Circuit Action (Case No. 00-56241) 10 On November 15, 1999, petitioner formally filed the operative first amended 11 petition for writ of habeas corpus (“First Federal Petition”) in the First Federal 12 Action, challenging the judgment in the State Case. On June 23, 2000, the 13 assigned Magistrate Judge issued a Final Report and Recommendation of United 14 States Magistrate Judge, recommending that the First Federal Action be dismissed 15 with prejudice because the First Federal Petition was time-barred. On June 23, 16 2000, the assigned District Judge issued an Order Adopting Final Report and 17 Recommendation of United States Magistrate Judge and dismissed the First 18 Federal Petition with prejudice. On June 27, 2000, judgment was entered 19 accordingly. 20 On July 6, 2000, petitioner filed a notice of appeal. On December 28, 2000, 21 in the First Ninth Circuit Action, the Ninth Circuit denied petitioner’s request for a 22 certificate of appealability. 23 C. Second Federal Action (CDCA Case No. 06-3278) and Second 24 Ninth Circuit Action (Case No. 06-56075) 25 On May 26, 2006, petitioner filed a petition for writ of habeas corpus 26 (“Second Federal Petition”) in the Second Federal Action, again challenging the 27 judgment in the State Case. On May 31, 2006, this Court summarily dismissed the 28 /// 1 Second State Petition without prejudice as successive. On July 3, 2006, this Court 2 denied petitioner’s motion to vacate judgment. 3 On August 1, 2006, after being afforded an extension of time, petitioner filed 4 a Notice of Appeal. On March 27, 2007, in the Second Ninth Circuit Action, the 5 Ninth Circuit denied petitioner’s request for a certificate of appealability. 6 D. Third Federal Action (CDCA Case No. 06-4168) 7 On June 30, 2006, petitioner filed a petition for writ of habeas corpus 8 (“Third Federal Petition”) in the Third Federal Action, again challenging the 9 judgment in the State Case. On July 6, 2006, this Court summarily dismissed the 10 Third Federal Petition without prejudice as successive. Petitioner did not appeal. 11 E. Fourth Federal Action (CDCA Case No. 06-4481) 12 On July 18, 2006, petitioner filed a petition for writ of habeas corpus 13 (“Fourth Federal Petition”) in the Fourth Federal Action, again challenging the 14 judgment in the State Case. On July 20, 2006, this Court summarily dismissed the 15 Fourth Federal Petition without prejudice as successive. Petitioner did not appeal. 16 F. Fifth Federal Action (CDCA Case No. 09-5418), Third Ninth 17 Circuit Action (Case No. 10-55412) and Fourth Ninth Circuit 18 Action (11-56735) 19 On July 24, 2009, petitioner filed a petition for writ of habeas corpus (“Fifth 20 Federal Petition”) in the Fifth Federal Action, again challenging the judgment in 21 the State Case. On August 11, 2009, this Court summarily dismissed the Fifth 22 Federal Petition without prejudice as successive.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JOSEPH NICHOLS, III, ) Case No. 2:19-cv-10235-DSF-JC 11 ) Petitioner, ) 12 ) ORDER DISMISSING PETITION v. ) FOR WRIT OF HABEAS 13 ) CORPUS AND ACTION CHRISTIAN PFEIFFER, Warden, ) WITHOUT PREJUDICE 14 ) ) 15 Respondent. ) ________________________________ ) 16 I. SUMMARY 17 On December 3, 2019, petitioner Joseph Nichols, III, who is proceeding pro 18 se, formally filed a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by 19 a Person in State Custody (“Current Federal Petition”). The Current Federal 20 Petition challenges petitioner’s 1993 conviction and sentence in Los Angeles 21 County Superior Court Case No. PA007472 (“State Case”). 22 Based on the record (including facts as to which this Court takes judicial 23 notice as detailed below) and the applicable law, the Current Federal Petition and 24 this action are dismissed without prejudice for lack of jurisdiction because 25 petitioner did not obtain the requisite authorization from the Court of Appeals to 26 file a successive petition. Further, the Clerk of the Court is directed to refer the 27 /// 28 1 Current Federal Petition to the United States Court of Appeals for the Ninth Circuit 2 (“Ninth Circuit”) pursuant to Ninth Circuit Rule 22-3(a).1 3 II. PROCEDURAL HISTORY2 4 A. State Proceedings 5 On July 8, 1993, a Los Angeles County Superior Court jury convicted 6 petitioner of kidnapping for robbery, second degree robbery, dissuading a witness 7 by force or threat, and evading an officer. The jury also found true allegations that 8 petitioner personally used a firearm in the commission of the foregoing crimes. 9 /// 10 11 1Ninth Circuit Rule 22-3(a) provides in pertinent part: “Any petitioner seeking 12 authorization to file a second or successive 2254 petition . . . in the district court must file an application in the Court of Appeals demonstrating entitlement to such leave under 28 U.S.C. 13 § 2254 . . . . If a second or successive petition . . . is mistakenly submitted to the district court, the district court shall refer it to the [C]ourt of [A]ppeals.” 14 15 2The facts and procedural history set forth in this section are derived from the Current Federal Petition and supporting documents and dockets/court records in the following Central 16 District of California (“CDCA”) and Ninth Circuit cases of which this Court takes judicial notice: (1) Nichols v. Small, CDCA Case No. 99-10778 LGB(SH) (“First Federal Action”); 17 (2) Nichols v. Evans, CDCA Case No. 06-3278 DSF(SH) (“Second Federal Action”); (3) 18 Nichols v. Evans, CDCA Case No. 06-4168 DSF(SH) (“Third Federal Action”); (4) Nichols v. Evans, CDCA Case No. 06-4481 DSF(SH) (“Fourth Federal Action”); (5) Nichols v. Hedgpeth, 19 CDCA Case No. 09-5418 DSF(SH) (“Fifth Federal Action”); (6) Nichols v. Hedgpeth, CDCA Case No. 11-10181 DSF(SH) (“Sixth Federal Action”); (7) Nichols v. Soto, CDCA Case No. 14- 20 6345 DSF(SH) (“Seventh Federal Action”); (8) Nichols v. Asuncion, CDCA Case No. 16-5405 21 DSF(JC) (“Eighth Federal Action”); (9) Nichols v. Arnold, CDCA Case No. 17-8490 DSF(JC) (“Ninth Federal Action”); (10) Nichols v. Arnold, CDCA Case No. 17-9271 DSF(JC) (“Tenth 22 Federal Action”); (11) Nichols v. Pfeiffer, CDCA Case No. 19-4433 DSF(JC) (“Eleventh 23 Federal Action”); (12) Nichols v. Pfeiffer, CDCA Case No. 19-6356 DSF(JC) (“Twelfth Federal Action”); (13) Nichols v. Small, Ninth Circuit Case No. 00-56241 (“First Ninth Circuit Action”); 24 (14) Nichols v. Evans, Ninth Circuit Case No. 06-56075 (“Second Ninth Circuit Action”); (15) Nichols v. Hedgpeth, Ninth Circuit Case No. 10-55412 (“Third Ninth Circuit Action”); 25 (16) Nichols v. Hedgpeth, Ninth Circuit Case No. 11-56735 (“Fourth Ninth Circuit Action”); 26 (17) Nichols v. Asuncion, Ninth Circuit Case No. 16-72582 (“Fifth Ninth Circuit Action”); and (18) Nichols v. Pfeiffer, Ninth Circuit Case No. 19-71334 (“Sixth Ninth Circuit Action”). See 27 Fed. R. Evid. 201; Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (court 28 may take judicial notice of undisputed matters of public record including documents on file in federal or state courts). 2 1 On direct appeal, the California Court of Appeal struck a personal firearm 2 use enhancement and a prior conviction enhancement, but affirmed the judgment in 3 all other respects. The California Supreme Court denied review on February 1, 4 1995. 5 Petitioner thereafter sought, and was denied state habeas relief in the Los 6 Angeles County Superior Court, the California Court of Appeal, and the California 7 Supreme Court. 8 B. First Federal Action (CDCA Case No. 99-10778) and First Ninth 9 Circuit Action (Case No. 00-56241) 10 On November 15, 1999, petitioner formally filed the operative first amended 11 petition for writ of habeas corpus (“First Federal Petition”) in the First Federal 12 Action, challenging the judgment in the State Case. On June 23, 2000, the 13 assigned Magistrate Judge issued a Final Report and Recommendation of United 14 States Magistrate Judge, recommending that the First Federal Action be dismissed 15 with prejudice because the First Federal Petition was time-barred. On June 23, 16 2000, the assigned District Judge issued an Order Adopting Final Report and 17 Recommendation of United States Magistrate Judge and dismissed the First 18 Federal Petition with prejudice. On June 27, 2000, judgment was entered 19 accordingly. 20 On July 6, 2000, petitioner filed a notice of appeal. On December 28, 2000, 21 in the First Ninth Circuit Action, the Ninth Circuit denied petitioner’s request for a 22 certificate of appealability. 23 C. Second Federal Action (CDCA Case No. 06-3278) and Second 24 Ninth Circuit Action (Case No. 06-56075) 25 On May 26, 2006, petitioner filed a petition for writ of habeas corpus 26 (“Second Federal Petition”) in the Second Federal Action, again challenging the 27 judgment in the State Case. On May 31, 2006, this Court summarily dismissed the 28 /// 1 Second State Petition without prejudice as successive. On July 3, 2006, this Court 2 denied petitioner’s motion to vacate judgment. 3 On August 1, 2006, after being afforded an extension of time, petitioner filed 4 a Notice of Appeal. On March 27, 2007, in the Second Ninth Circuit Action, the 5 Ninth Circuit denied petitioner’s request for a certificate of appealability. 6 D. Third Federal Action (CDCA Case No. 06-4168) 7 On June 30, 2006, petitioner filed a petition for writ of habeas corpus 8 (“Third Federal Petition”) in the Third Federal Action, again challenging the 9 judgment in the State Case. On July 6, 2006, this Court summarily dismissed the 10 Third Federal Petition without prejudice as successive. Petitioner did not appeal. 11 E. Fourth Federal Action (CDCA Case No. 06-4481) 12 On July 18, 2006, petitioner filed a petition for writ of habeas corpus 13 (“Fourth Federal Petition”) in the Fourth Federal Action, again challenging the 14 judgment in the State Case. On July 20, 2006, this Court summarily dismissed the 15 Fourth Federal Petition without prejudice as successive. Petitioner did not appeal. 16 F. Fifth Federal Action (CDCA Case No. 09-5418), Third Ninth 17 Circuit Action (Case No. 10-55412) and Fourth Ninth Circuit 18 Action (11-56735) 19 On July 24, 2009, petitioner filed a petition for writ of habeas corpus (“Fifth 20 Federal Petition”) in the Fifth Federal Action, again challenging the judgment in 21 the State Case. On August 11, 2009, this Court summarily dismissed the Fifth 22 Federal Petition without prejudice as successive. On September 17, 2009, 23 petitioner filed a Notice of Appeal, appealing such dismissal. 24 On February 11, 2010, this Court denied petitioner’s motion to vacate 25 judgment. On March 12, 2010, petitioner filed another Notice of Appeal, 26 appealing such denial. 27 On October 24, 2011, in the Third and Fourth Ninth Circuit Actions, the 28 Ninth Circuit denied petitioner’s requests for certificates of appealability. 4 1 G. Sixth Federal Action (CDCA Case No. 11-10181) 2 On December 8, 2011, petitioner filed a petition for writ of habeas corpus 3 (“Sixth Federal Petition”) in the Sixth Federal Action, again challenging the 4 judgment in the State Case. On December 27, 2011, this Court summarily 5 dismissed the Sixth Federal Petition without prejudice as successive. Petitioner did 6 not appeal. 7 H. Seventh Federal Action (CDCA Case No. 14-6345) 8 On August 13, 2014, petitioner filed a petition for writ of habeas corpus 9 (“Seventh Federal Petition”) in the Seventh Federal Action, again challenging the 10 judgment in the State Case. On August 15, 2014, this Court summarily dismissed 11 the Seventh Federal Petition without prejudice as successive. On September 11, 12 2014, this Court denied petitioner’s motion to vacate judgment. Petitioner did not 13 appeal. 14 I. Eighth Federal Petition (CDCA Case No. 16-5405) and Fifth 15 Ninth Circuit Action (Case No. 16-72582) 16 On July 20, 2016, petitioner filed a petition for writ of habeas corpus 17 (“Eighth Federal Petition”) in the Eighth Federal Action, again challenging the 18 judgment in the State Case. On August 1, 2016, this Court summarily dismissed 19 the Eighth Federal Petition without prejudice as successive and directed the Clerk 20 to refer the matter to the Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a). See 21 supra note 1. Judgment was entered accordingly on August 2, 2016. Petitioner did 22 not appeal. 23 On February 15, 2017, in the Fifth Ninth Circuit Action, the Ninth Circuit 24 denied petitioner leave to file a second or successive 28 U.S.C. § 2254 habeas 25 corpus petition. 26 J. Ninth Federal Petition (CDCA Case No. 17-8490) 27 On November 21, 2017, petitioner filed a petition for writ of habeas corpus 28 (“Ninth Federal Petition”) in the Ninth Federal Action, again challenging the 5 1 judgment in the State Case. On December 4, 2017, this Court summarily 2 dismissed the Ninth Federal Petition without prejudice as successive. Judgment 3 was entered accordingly on the same date. Petitioner did not appeal. 4 K. Tenth Federal Petition (CDCA Case No. 17-9271) 5 On December 28, 2017, petitioner filed a petition for writ of habeas corpus 6 (“Tenth Federal Petition”) in the Tenth Federal Action which primarily raised 7 parole issues, but also appeared to challenge the judgment in the State Case. On 8 April 4, 2018, this Court summarily dismissed the Tenth Federal Petition, in part 9 because to the extent it challenged the judgment in the State Case, it was 10 successive. Judgment was entered accordingly on April 5, 2018. Petitioner did not 11 appeal. 12 L. Eleventh Federal Petition (CDCA Case No. 19-4433) and Sixth 13 Ninth Circuit Action (Case No. 19-71334) 14 On May 22, 2019, petitioner filed a petition for writ of habeas corpus 15 (“Eleventh Federal Petition”) in the Eleventh Federal Action, again challenging the 16 judgment in the State Case. On May 29, 2019, this Court summarily dismissed the 17 Eleventh Federal Petition without prejudice as successive and directed the Clerk to 18 refer the matter to the Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a). See 19 supra note 1. Judgment was entered accordingly on May 30, 2019. Petitioner did 20 not appeal. 21 On July 19, 2019, in the Sixth Ninth Circuit Action, the Ninth Circuit denied 22 petitioner leave to file a second or successive 28 U.S.C. § 2254 habeas corpus 23 petition. 24 M. Twelfth Federal Petition (CDCA Case No. 19-6356) 25 On July 22, 2019, petitioner filed a petition for writ of habeas corpus 26 (“Twelfth Federal Petition”) in the Twelfth Federal Action which raised parole 27 issues. On August 26, 2019, this Court summarily dismissed the Twelfth Federal 28 /// 6 1 Petition. Judgment was entered accordingly on the same date. Petitioner did not 2 appeal. 3 N. Current Federal Petition 4 As noted above, on December 3, 2019, petitioner formally filed the Current 5 Federal Petition which again challenges the judgment in the State Case. The 6 record does not reflect that petitioner has obtained authorization from the Ninth 7 Circuit to file the Current Federal Petition in District Court.3 9 Before a habeas petitioner may file a second or successive petition in a 10 district court, he must apply to the appropriate court of appeals for an order 11 authorizing the district court to consider the application. Burton v. Stewart, 549 12 U.S. 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(3)(A)). This provision 13 “creates a ‘gatekeeping’ mechanism for the consideration of second or successive 14 applications in district court.” Felker v. Turpin, 518 U.S. 651, 657 (1996); see also 15 Reyes v. Vaughn, 276 F.Supp.2d 1027, 1028-30 (C.D. Cal. 2003) (discussing 16 applicable procedures in Ninth Circuit). A district court lacks jurisdiction to 17 consider the merits of a second or successive habeas petition in the absence of 18 proper authorization from a court of appeals. Cooper v. Calderon, 274 F.3d 1270, 19 1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen, 157 F.3d 661, 664 20 (9th Cir. 1998)), cert. denied, 538 U.S. 984 (2003). 21 A second or subsequent habeas petition is not considered “successive” if the 22 initial habeas petition was dismissed for a technical or procedural reason, rather 23 than on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-487 (2000) (second 24 habeas petition not “successive” if initial habeas petition dismissed for failure to 25 exhaust state remedies); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-645 26 27 3A search of the court’s PACER system does not reflect that petitioner has been granted 28 leave to file a second or successive petition by the Ninth Circuit. 7 1 || (1998) (second habeas petition not “successive” if claim raised in first habeas 2 || petition dismissed as premature); but see McNabb v. Yates, 576 F.3d 1028, 1030 3 |] (9th Cir. 2009) (dismissal on statute of limitations grounds constitutes disposition 4 || on the merits rendering subsequent petition “second or successive’); Henderson v. 5 || Lampert, 396 F.3d 1049, 1053 (9th Cir.) (dismissal on procedural default grounds 6 || constitutes disposition on the merits rendering subsequent petition “second or 7 || successive’), cert. denied, 546 U.S. 884 (2005); Plaut v. Spendthrift Farm, Inc., 8 | 514 U.S. 211, 228 (1995) (dismissal for failure to prosecute treated as judgment on 9 || the merits) (citations omitted); Reyes v. United States, 1999 WL 1021815 *3 10 || (E.D.N.Y. 1999) (dismissal of first habeas petition for failure to prosecute pursuant 11 || to Fed. R. Civ. P. 41(b) constitutes dismissal on the merits and renders 12 || subsequently filed habeas petition second or successive). 13 Petitioner’s First Federal Petition was dismissed with prejudice as untimely 14 || —a determination which the Ninth Circuit has deemed to constitute a disposition on 15 || the merits. See McNabb, 576 F.3d at 1030. Accordingly, the Current Federal 16 |} Petition — like the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, 17 || portion of the Tenth, and Eleventh Federal Petitions — is successive. Since 18 || petitioner filed the Current Federal Petition without authorization from the Ninth 19 || Circuit, this Court lacks jurisdiction to consider it. ORDER 21 IT IS THEREFORE ORDERED that the Current Federal Petition and this 22 || action are dismissed without prejudice. The Clerk of the Court is directed to refer 23 | the Current Federal Petition to the Ninth Circuit pursuant to Ninth Circuit Rule 22- 24 || 3(a). 25 IT IS SO ORDERED. /( dy ) j fo. ji.» 26 || DATED: December 17, 2019 Se 38 UNITED STATES DISTRICT JUDGE