1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 NATHANIEL JAMES, JR., Case No. 2:20-cv-00540-SVW-KES 12 Petitioner, ORDER TO SHOW CAUSE WHY 13 v. HABEAS PETITION SHOULD NOT BE 14 G. MATTESON, Warden, DISMISSED AS SUCCESSIVE 15 Respondent. 16 17 I. 18 INTRODUCTION 19 In January 2020, Petitioner Nathaniel James, Jr. (“Petitioner”) filed a Petition 20 for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 21 § 2254. (Dkt. 1 [the “Petition”].) The Petition challenges Petitioner’s 1983 22 conviction for first-degree murder for which he was sentenced to life without the 23 possibility of parole. (Id. at 1.) 24 II. 25 FACTUAL BACKGROUND 26 The facts below are taken from the Ninth Circuit’s published opinion 27 discussing Petitioner’s earlier § 2254 petition. 28 // 1 On December 4, 1981, petitioner cruised the Beverly Hills area 2 in a stolen van, drinking alcohol, using drugs and stealing women’s 3 purses. The next day petitioner announced to his cohorts that he 4 would show them “how to do a real robbery.” Petitioner approached a 5 parked car in which Lev and Rima Pikas were sitting. Petitioner was 6 wearing a short-sleeved shirt. Pointing a gun at Lev Pikas, petitioner 7 demanded money. He then shot both Lev and Rima Pikas. Lev Pikas 8 gave petitioner two blood-stained $ 20 bills. Upon returning to the 9 van, petitioner boasted to his cohorts that he had “shot the bitch in the 10 temple.” Petitioner then threw the gun out the van window; the gun 11 was subsequently found by the police. 12 Within minutes after the shooting, the police stopped the van. 13 Petitioner was the only person in the van wearing a short-sleeved 14 shirt. The police found Rima Pikas’s purse in the van. After 15 petitioner’s arrest, the police found two blood-stained bills inside his 16 pocket. There was blood on petitioner’s clothing. The blood on the 17 bills and petitioner’s clothing was Type A, the blood type of Lev 18 Pikas. An eyewitness identified petitioner as the man who fired the 19 gun. Rima Pikas died as a result of her injuries. 20 James v. Borg, 24 F.3d 20, 23 (9th Cir. 1994). 21 III. 22 PROCEDURAL HISTORY 23 The following explanation of relevant trial court and appellate proceedings 24 also comes from the Ninth Circuit’s opinion. 25 On February 5, 1982, an information was filed, alleging that 26 petitioner committed a murder during the course of a robbery. 27 Specifically, the information charged that appellant “did willfully and 28 unlawfully and with malice aforethought murder Rima Pikas.” The 1 information alleged that petitioner had been armed and that he had 2 personally used the firearm. The information also charged petitioner 3 with murder, attempted murder, and two robberies. The information 4 did not allege that petitioner had intent to kill Rima Pikas. 5 On July 5, 1983, petitioner’s trial began in state court. The 6 prosecution tried its case on a felony murder theory. After the defense 7 rested, the prosecution requested and received a jury instruction which 8 included intent to kill as an element of the felony-murder special 9 circumstance charge. Appellant did not object. On September 19, 10 1983, the jury convicted petitioner of first degree murder. The jury 11 found that: (1) petitioner was armed; (2) petitioner murdered Rima 12 Pikas during the commission of a robbery; (3) petitioner was the 13 actual killer; and (4) petitioner acted with the intent to kill. Petitioner 14 was sentenced to life without possibility of parole. 15 On appeal, petitioner raised three claims. He argued that: 16 (1) his Sixth Amendment right to be informed of the nature and cause 17 of the charge was violated because he was not given notice that intent 18 to kill was a special circumstance element of murder in the course of a 19 robbery; (2) his Sixth Amendment right to receive effective assistance 20 of counsel at trial was denied; and (3) his Fifth Amendment right 21 against self-incrimination was violated because the prosecutor 22 commented in closing argument on petitioner’s failure to submit to a 23 psychiatric interview. The California Court of Appeal rejected 24 petitioner’s claims and affirmed his conviction. Petitioner then filed a 25 petition for review with the California Supreme Court, again raising a 26 Sixth Amendment notice claim. This petition was denied on 27 December 19, 1985. Several years later, petitioner filed a second 28 petition for review with the California Supreme Court, asserting an 1 ineffective assistance of trial counsel claim. This second petition was 2 denied on March 27, 1991. 3 On June 12, 1991, petitioner filed pro se a habeas corpus 4 petition in federal district court [Central District of California case no. 5 91-cv-3161]. He again raised the three claims he argued before the 6 California Court of Appeal. On May 27, 1992, a magistrate judge 7 issued a report and recommendation that the petition be denied and 8 the action be dismissed with prejudice. First, the magistrate saw no 9 violation of petitioner’s Sixth Amendment right to be informed of the 10 nature and cause of the charge on the ground that intent to kill had 11 been omitted. Second, the magistrate found no ground for finding that 12 trial counsel was ineffective. Finally, the magistrate found no 13 violation of petitioner’s Fifth Amendment right against self- 14 incrimination. On June 30, 1993, the district court entered an order 15 adopting the magistrate’s report and recommendation. 16 On July 22, 1993, petitioner filed a timely notice of appeal. 17 The Ninth Circuit issued a certificate of probable cause and appointed 18 counsel for petitioner. 19 James, 24 F.3d at 23-24. 20 The Ninth Circuit affirmed the judgment of the district court. Regarding 21 Petitioner’s Sixth Amendment claim, the Ninth Circuit ruled that under California 22 law, “intent to kill was not an element of the felony-murder special circumstance” 23 at the time when Petitioner shot Rima Pikas. (Id. at 26.) 24 III. 25 CLAIMS 26 Petitioner now raises a different Sixth Amendment claim. He alleges “Sixth 27 Amendment error” because “the charging instrument fails to inform Petitioner of 28 the nature and cause of the accusation.” (Dkt. 1 at 11.) In the supporting facts, he 1 alleges that “California law requires prosecution of felonies are to be by mode of 2 indictment or information,” such that his prosecution via a felony complaint was 3 unauthorized, and the California courts lacked jurisdiction to enter a judgment 4 against him. (Id. at 14.) He further argues that the prosecutor violated California 5 law by filing a complaint, and that the prosecutor’s wrongdoing requires reversal of 6 his conviction. (Id. at 20.) He contends that a void judgment can be attacked in 7 any court at any time. (Id. at 23.) 8 III. 9 DISCUSSION A. Applicable Law. 10 11 In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 12 (“AEDPA”). AEDPA applies to the instant Petition, even though Petitioner was 13 convicted in the 1980s. Rowland v. Chappell, 876 F.3d 1174, 1182 (9th Cir. 2017). 14 AEDPA provides in relevant part as follows: 15 (b)(1) A claim presented in a second or successive habeas corpus 16 application under section 2254 that was presented in a prior 17 application shall be dismissed.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 NATHANIEL JAMES, JR., Case No. 2:20-cv-00540-SVW-KES 12 Petitioner, ORDER TO SHOW CAUSE WHY 13 v. HABEAS PETITION SHOULD NOT BE 14 G. MATTESON, Warden, DISMISSED AS SUCCESSIVE 15 Respondent. 16 17 I. 18 INTRODUCTION 19 In January 2020, Petitioner Nathaniel James, Jr. (“Petitioner”) filed a Petition 20 for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 21 § 2254. (Dkt. 1 [the “Petition”].) The Petition challenges Petitioner’s 1983 22 conviction for first-degree murder for which he was sentenced to life without the 23 possibility of parole. (Id. at 1.) 24 II. 25 FACTUAL BACKGROUND 26 The facts below are taken from the Ninth Circuit’s published opinion 27 discussing Petitioner’s earlier § 2254 petition. 28 // 1 On December 4, 1981, petitioner cruised the Beverly Hills area 2 in a stolen van, drinking alcohol, using drugs and stealing women’s 3 purses. The next day petitioner announced to his cohorts that he 4 would show them “how to do a real robbery.” Petitioner approached a 5 parked car in which Lev and Rima Pikas were sitting. Petitioner was 6 wearing a short-sleeved shirt. Pointing a gun at Lev Pikas, petitioner 7 demanded money. He then shot both Lev and Rima Pikas. Lev Pikas 8 gave petitioner two blood-stained $ 20 bills. Upon returning to the 9 van, petitioner boasted to his cohorts that he had “shot the bitch in the 10 temple.” Petitioner then threw the gun out the van window; the gun 11 was subsequently found by the police. 12 Within minutes after the shooting, the police stopped the van. 13 Petitioner was the only person in the van wearing a short-sleeved 14 shirt. The police found Rima Pikas’s purse in the van. After 15 petitioner’s arrest, the police found two blood-stained bills inside his 16 pocket. There was blood on petitioner’s clothing. The blood on the 17 bills and petitioner’s clothing was Type A, the blood type of Lev 18 Pikas. An eyewitness identified petitioner as the man who fired the 19 gun. Rima Pikas died as a result of her injuries. 20 James v. Borg, 24 F.3d 20, 23 (9th Cir. 1994). 21 III. 22 PROCEDURAL HISTORY 23 The following explanation of relevant trial court and appellate proceedings 24 also comes from the Ninth Circuit’s opinion. 25 On February 5, 1982, an information was filed, alleging that 26 petitioner committed a murder during the course of a robbery. 27 Specifically, the information charged that appellant “did willfully and 28 unlawfully and with malice aforethought murder Rima Pikas.” The 1 information alleged that petitioner had been armed and that he had 2 personally used the firearm. The information also charged petitioner 3 with murder, attempted murder, and two robberies. The information 4 did not allege that petitioner had intent to kill Rima Pikas. 5 On July 5, 1983, petitioner’s trial began in state court. The 6 prosecution tried its case on a felony murder theory. After the defense 7 rested, the prosecution requested and received a jury instruction which 8 included intent to kill as an element of the felony-murder special 9 circumstance charge. Appellant did not object. On September 19, 10 1983, the jury convicted petitioner of first degree murder. The jury 11 found that: (1) petitioner was armed; (2) petitioner murdered Rima 12 Pikas during the commission of a robbery; (3) petitioner was the 13 actual killer; and (4) petitioner acted with the intent to kill. Petitioner 14 was sentenced to life without possibility of parole. 15 On appeal, petitioner raised three claims. He argued that: 16 (1) his Sixth Amendment right to be informed of the nature and cause 17 of the charge was violated because he was not given notice that intent 18 to kill was a special circumstance element of murder in the course of a 19 robbery; (2) his Sixth Amendment right to receive effective assistance 20 of counsel at trial was denied; and (3) his Fifth Amendment right 21 against self-incrimination was violated because the prosecutor 22 commented in closing argument on petitioner’s failure to submit to a 23 psychiatric interview. The California Court of Appeal rejected 24 petitioner’s claims and affirmed his conviction. Petitioner then filed a 25 petition for review with the California Supreme Court, again raising a 26 Sixth Amendment notice claim. This petition was denied on 27 December 19, 1985. Several years later, petitioner filed a second 28 petition for review with the California Supreme Court, asserting an 1 ineffective assistance of trial counsel claim. This second petition was 2 denied on March 27, 1991. 3 On June 12, 1991, petitioner filed pro se a habeas corpus 4 petition in federal district court [Central District of California case no. 5 91-cv-3161]. He again raised the three claims he argued before the 6 California Court of Appeal. On May 27, 1992, a magistrate judge 7 issued a report and recommendation that the petition be denied and 8 the action be dismissed with prejudice. First, the magistrate saw no 9 violation of petitioner’s Sixth Amendment right to be informed of the 10 nature and cause of the charge on the ground that intent to kill had 11 been omitted. Second, the magistrate found no ground for finding that 12 trial counsel was ineffective. Finally, the magistrate found no 13 violation of petitioner’s Fifth Amendment right against self- 14 incrimination. On June 30, 1993, the district court entered an order 15 adopting the magistrate’s report and recommendation. 16 On July 22, 1993, petitioner filed a timely notice of appeal. 17 The Ninth Circuit issued a certificate of probable cause and appointed 18 counsel for petitioner. 19 James, 24 F.3d at 23-24. 20 The Ninth Circuit affirmed the judgment of the district court. Regarding 21 Petitioner’s Sixth Amendment claim, the Ninth Circuit ruled that under California 22 law, “intent to kill was not an element of the felony-murder special circumstance” 23 at the time when Petitioner shot Rima Pikas. (Id. at 26.) 24 III. 25 CLAIMS 26 Petitioner now raises a different Sixth Amendment claim. He alleges “Sixth 27 Amendment error” because “the charging instrument fails to inform Petitioner of 28 the nature and cause of the accusation.” (Dkt. 1 at 11.) In the supporting facts, he 1 alleges that “California law requires prosecution of felonies are to be by mode of 2 indictment or information,” such that his prosecution via a felony complaint was 3 unauthorized, and the California courts lacked jurisdiction to enter a judgment 4 against him. (Id. at 14.) He further argues that the prosecutor violated California 5 law by filing a complaint, and that the prosecutor’s wrongdoing requires reversal of 6 his conviction. (Id. at 20.) He contends that a void judgment can be attacked in 7 any court at any time. (Id. at 23.) 8 III. 9 DISCUSSION A. Applicable Law. 10 11 In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 12 (“AEDPA”). AEDPA applies to the instant Petition, even though Petitioner was 13 convicted in the 1980s. Rowland v. Chappell, 876 F.3d 1174, 1182 (9th Cir. 2017). 14 AEDPA provides in relevant part as follows: 15 (b)(1) A claim presented in a second or successive habeas corpus 16 application under section 2254 that was presented in a prior 17 application shall be dismissed. 18 (2) A claim presented in a second or successive habeas corpus 19 application under section 2254 that was not presented in a prior 20 application shall be dismissed unless-- 21 (A) the applicant shows that the claim relies on a new rule of 22 constitutional law, made retroactive to cases on collateral review by 23 the Supreme Court, that was previously unavailable; or 24 (B)(i) the factual predicate for the claim could not have been 25 discovered previously through the exercise of due diligence; and 26 (ii) the facts underlying the claim, if proven and viewed in light 27 of the evidence as a whole, would be sufficient to establish by clear 28 and convincing evidence that, but for constitutional error, no 1 reasonable factfinder would have found the applicant guilty of the 2 underlying offense. 3 (3)(A) Before a second or successive application permitted by this 4 section is filed in the district court, the applicant shall move in the 5 appropriate court of appeals for an order authorizing the district court 6 to consider the application. 7 28 U.S.C. § 2244(b) (emphasis added). 8 Thus, if a California petitioner wishes to file a second federal habeas petition 9 based on new law or newly discovered facts, the petitioner must first ask the Ninth 10 Circuit for permission to do so. Without such authorization, the District Court 11 lacks jurisdiction to entertain the successive petition. Cooper v. Calderon, 274 F.3d 12 1270, 1274 (9th Cir. 2001), cert. denied, 538 U.S. 984 (2003). 13 B. Analysis. 14 Petitioner previously filed a § 2254 petition challenging his 1983 conviction. 15 See James v. Borg, Central District of California case no. 2:91-cv-03161-WJR-CT. 16 He filed another § 2254 petition several years later. See James v. White, Central 17 District of California case no. 2:95-cv-08546-WJR-CT. 18 The Petition now pending appears to be a successive petition challenging the 19 same conviction as one or both of Petitioner’s prior federal habeas petitions. Thus, 20 it was incumbent on Petitioner under § 2244(b)(3)(A) to secure an order from the 21 Ninth Circuit authorizing the District Court to consider his new claims prior to 22 filing the instant Petition. Petitioner’s failure to secure an order from the Ninth 23 Circuit deprives this Court of subject matter jurisdiction. 24 IT IS THEREFORE ORDERED that on or before February 24, 2020, 25 Petitioner shall show cause in writing, if any he has, why the Petition should not be 26 dismissed without prejudice as successive. Petitioner may respond to this order by 27 (1) explaining why the instant Petition does not challenge the same conviction as 28 1 | his two prior federal petitions, or (2) voluntarily dismissing the instant Petition and 2 | filing a request with the Ninth Circuit to file a successive § 2254 petition. 3 4 DATED: January 24, 2020 Hy. E oun Seat KAREN E. SCOTT 6 United States Magistrate Judge 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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