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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 NATHANIEL JAMES, JR., Case No. 2:20-cv-00540-SVW-KES

12 Petitioner, ORDER SUMMARILY DISMISSING 13 v. SUCCESSIVE HABEAS PETITION

14 G. MATTESON, Warden,

15 Respondent.

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17 I.

18 INTRODUCTION

19 On January 12, 2020 (per proof of service), Nathaniel James, Jr.

20 (“Petitioner”) constructively filed a Petition for Writ of Habeas Corpus by a Person 21 in State Custody pursuant to

. (Dkt. 1 [the “Petition”].) The 22 Petition challenges Petitioner’s 1983 conviction of first degree murder for which he 23 was sentenced to life without the possibility of parole. (Id. at 1.) 24 II. 25 FACTUAL BACKGROUND 26 The following facts 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,

(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,

. 20 The Ninth Circuit affirmed the judgment of the district court.

. 21 Regarding Petitioner’s Sixth Amendment claim, the Ninth Circuit ruled that under 22 California law, “intent to kill was not an element of the felony-murder special 23 circumstance” at the time when Petitioner shot Rima Pikas.

. 24 On January 24, 2020, the Court issued an Order to Show Cause (“OSC”) why 25 the Petition should not be dismissed as successive. (Dkt. 3.) On March 30, 2020, 26 Petitioner constructively filed a response to the OSC. (Dkt. 6.) 27 // 28 // 1 IV. 2 CLAIMS 3 Petitioner now raises a different Sixth Amendment claim. (Dkt. 1.) He 4 alleges “Sixth Amendment error” because “the charging instrument fails to inform 5 Petitioner of the nature and cause of the accusation.” (Id. at 11.) In the supporting 6 facts, he alleges that “California law requires prosecution of felonies are to be by 7 mode of indictment or information” such that his prosecution via a felony 8 complaint was unauthorized, and the California courts lacked jurisdiction to enter a 9 judgment against him. (Id. at 14.) He further argues that the prosecutor violated 10 California law by filing a complaint, and that the prosecutor’s wrongdoing requires 11 reversal of his conviction. (Id. at 20.) He contends that a void judgment can be 12 attacked in any court at any time. (Id. at 23-24.). In his response to the OSC, 13 Petitioner reiterates points made in his Petition and argues that the Antiterrorism 14 and Effective Death Penalty Act (“AEDPA”) does not apply to the Petition because 15 the underlying judgment of conviction is “void.” (Dkt. 6 at 2.)

DISCUSSION 18 A. Applicable Law. 19 In 1996, Congress enacted AEDPA. AEDPA applies to the instant Petition, 20 even though Petitioner was convicted in the 1980s. Rowland v. Chappell,

1174, 1182 (9th Cir. 2017). 22 AEDPA provides in relevant part as follows: 23 (b)(1) A claim presented in a second or successive habeas corpus 24 application under section 2254 that was presented in a prior 25 application shall be dismissed. 26 (2) A claim presented in a second or successive habeas corpus 27 application under section 2254 that was not presented in a prior 28 application shall be dismissed unless-- 1 (A) the applicant shows that the claim relies on a new rule of 2 constitutional law, made retroactive to cases on collateral review by 3 the Supreme Court, that was previously unavailable; or 4 (B)(i) the factual predicate for the claim could not have been 5 discovered previously through the exercise of due diligence; and 6 (ii) the facts underlying the claim, if proven and viewed in light 7 of the evidence as a whole, would be sufficient to establish by clear 8 and convincing evidence that, but for constitutional error, no 9 reasonable factfinder would have found the applicant guilty of the 10 underlying offense. 11 (3)(A) Before a second or successive application permitted by this 12 section is filed in the district court, the applicant shall move in the 13 appropriate court of appeals for an order authorizing the district court 14 to consider the application. 15

(b) (emphasis added). 16 Thus, if a California petitioner wishes to file a second federal habeas petition 17 based on new law or newly discovered facts, the petitioner must first ask the Ninth 18 Circuit for permission to do so. Without such authorization, the District Court 19 lacks jurisdiction to entertain the successive petition. Cooper v. Calderon,

(9th Cir. 2001), cert. denied,

(2003). 21 B. Analysis. 22 Petitioner previously filed a § 2254 petition challenging his 1983 conviction. 23 See James v. Borg, Central District of California case no. 2:91-cv-03161-WJR-CT. 24 He filed another § 2254 petition several years later. See James v. White, Central 25 District of California case no. 2:95-cv-08546-WJR-CT. 26 The instant Petition is a successive petition challenging the same conviction 27 as one or both of Petitioner’s prior federal habeas petitions. Thus, it was incumbent 28 on Petitioner under § 2244(b)(3)(A) to secure an order from the Ninth Circuit 1 | authorizing the District Court to consider his new claim prior to filing the instant 2 | Petition. Petitioner’s failure to secure an order from the Ninth Circuit deprives this 3 | Court of subject matter jurisdiction. 4 VI. 5 CONCLUSION 6 IT IS THEREFORE ORDERED that this action be summarily dismissed 7 | without prejudice pursuant to Rule 4 of the Rules Governing § 2254 Cases in the 8 || United States District Courts. 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 1 Levy p)pr- 12 | DATED: _ June 4, 2020 aS 13 STEPHEN V. WILSON 14 UNITED STATES DISTRICT JUDGE

15 16 | Presented by: | Tous E. Seatts 18 | KAREN E. SCOTT 19 | United States Magistrate Judge 20 21 22 23 24 25 26 27 28