1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DANIEL BROWN, Case No. 2:21-CV-05325 SVW (KES)

12 Petitioner, ORDER DISMISSING HABEAS 13 v. PETITION AS SUCCESSIVE 14 THERESA CISNEROS, Acting Warden, 15 Respondent. 16

17 18 On June 29, 2021, Daniel Brown (“Petitioner”) filed a Petition for Writ of 19 Habeas Corpus by a Person in State Custody pursuant to

. (Dkt. 1 20 [“Pet.”].1) The Petition is the second habeas corpus petition that Petitioner has filed 21 in this Court stemming from his 2012 state court conviction and sentence in Los 22 Angeles County Superior Court case no. VA117914. 23 Under Rule 4 of the Rules Governing Section 2254 Cases in the United 24 States District Courts, a habeas petition filed by a prisoner in state custody “must” 25 be summarily dismissed “[i]f it plainly appears from the petition and any attached 26 exhibits that the petitioner is not entitled to relief in the district court[.]” For the 27

28 1 Citations refer to pagination imposed by the Court’s e-filing system. 1 reasons set forth below, the Petition must be dismissed without prejudice as a 2 second or successive petition pursuant to

(b). 3 I. 4 BACKGROUND 5 A. State Court Proceedings. 6 In 2012, Petitioner was sentenced to prison for a term of 45 years to life after 7 a jury convicted him of two counts of robbery, with a firearm enhancement, and 8 one count of evading an officer while driving against traffic. People v. Brown, No. 9 B240022,

, at *1,

, at *1 10 (Cal. Ct. App. Oct. 23, 2012). In a separate trial, he was found to have suffered two 11 prior serious felony convictions within the meaning of California’s Three Strikes 12 law.

Petitioner appealed his conviction (case no. B240022).

He 13 (1) challenged the sufficiency of the evidence to support the trial court’s true 14 finding as to his alleged prior convictions; (2) asserted the trial court abused its 15 discretion by denying his Romero motion; and (3) argued the court was required to 16 stay his sentence for the Vehicle Code violation.

2012 Cal. App. Unpub.

, at *1–2. On October 23, 2012, the California Court of Appeal agreed 18 that Petitioner’s sentence for evading must be stayed but in all other respects 19 affirmed the judgment. See Brown v. Montgomery, No. 2:14-cv-00069 (C.D. Cal. 20 filed Jan. 3, 2014) (Brown I) (Dkt. 38 at 3).2 Petitioner filed a petition for review in 21 22 2 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the docket 23 sheets and related documents in Brown I. See Shuttlesworth v. City of 24 Birmingham, Ala.,

(1969); see also United States v. Raygoza- Garcia,

(9th Cir. 2018) (“A court may take judicial notice of 25 undisputed matters of public record, which may include court records available 26 through PACER.”); Bias v. Moynihan,

(9th Cir. 2007) (A court “may take notice of proceedings in other courts, both within and without the 27 federal judicial system, if those proceedings have a direct relation to matters at 28 issue.”) (citation omitted). 1 the California Supreme Court (case no. S206829).

On January 3, 2013, the 2 California Supreme Court summarily denied discretionary review.

3 In December 2013, Petitioner filed a habeas petition in the Los Angeles 4 County Superior Court, which denied the petition on January 15, 2014.

In 5 February 2014, Petitioner filed a habeas petition in the California Court of Appeal 6 (case no. B254264), which summarily denied the petition on February 21, 2014.

7 In March 2014, Petitioner filed a habeas petition in the California Supreme Court 8 (case no. S217019), which summarily denied the petition on May 14, 2014.

9 In May 2017, Petitioner filed another habeas petition in the California Court 10 of Appeal, which summarily denied the petition on June 8, 2017. See California 11 Appellate Courts Case Information, case no. B282743.3 In August 2017, Petitioner 12 filed a habeas petition in the California Supreme Court, which denied the petition 13 on October 18, 2017. See California Appellate Courts Case Information, case no. 14 S243635. 15 In May 2018, Petitioner filed another habeas petition in the California Court 16 of Appeal, which summarily denied the petition on May 31, 2018. See California 17 Appellate Courts Case Information, case no. B290249. In June 2018, Petitioner 18 filed a habeas petition in the California Supreme Court, which denied the petition 19 on October 17, 2018. See California Appellate Courts Case Information, case no. 20 S249580. 21 In January 2020, Petitioner filed another habeas petition in the California 22 Court of Appeal, which summarily denied the petition on March 5, 2020. See 23 California Appellate Courts Case Information, case no. B303526. On August 5, 24 2020, the Los Angeles Superior Court summarily denied Petitioner’s habeas 25 petition. (Pet. at 11, 15.) In August 2020, Petitioner filed a habeas petition in the 26 3 The dockets (and some opinions) of the California Courts of Appeal and the 27 California Supreme Court are available at: <https://appellatecases.courtinfo.ca.gov/ 28 index.cfm>. 1 California Court of Appeal, which summarily denied the petition on November 5, 2 2020. See California Appellate Courts Case Information, case no. B3077099. In 3 February 2021, Petitioner filed a habeas petition in the California Supreme Court, 4 which denied the petition on April 21, 2021. See California Appellate Courts Case 5 Information, case no. S267291. 6 B. Prior Federal Habeas Petitions. 7 On January 3, 2014, Petitioner filed his first habeas petition in federal court. 8 Brown I (Dkt. 1). On March 12, 2014, the Court granted Petitioner’s request for 9 stay and abeyance to allow him to present his unexhausted claims in a habeas 10 petition to the California Supreme Court. Brown I (Dkt. 11). After Petitioner 11 exhausted his claims the stay was lifted, and Petitioner filed a First Amended 12 Petition. Brown I (Dkt. 17, 20). On November 25, 2015, the Court denied the First 13 Amended Petition and dismissed the action with prejudice. Brown I (Dkt. 38, 41, 14 42). On September 23, 2016, the United States Court of Appeals for the Ninth 15 Circuit denied Petitioner’s request for a certificate of appealability. Brown I (Dkt. 16 48); see Brown v. Montgomery, No. 16-55099,

, 2016 U.S. App.

(9th Cir. Sept. 23, 2016). 18 On June 29, 2021, Petitioner filed the instant Petition. 19 II. 20 DISCUSSION 21 The instant Petition raises a single claim for relief: the Los Angeles Superior 22 Court, in case no. VA117914, exceeded its jurisdiction by imposing a longer term 23 than mandated by law in violation of Petitioner’s right to due process. (Pet. at 5, 9.) 24 Specifically, Petitioner argues that the trial court erroneously used his 1987 “non- 25 serious/non-violent” prior felony conviction as a strike to enhance his 2012 26 sentence under California Penal Code § 667.5. (Id. at 10, 13–14.) This claim is 27 similar to the issues he raised on direct appeal and in his prior federal habeas 28 petition. See Brown I (Dkt. 20 at 3) (In Petitioner’s direct appeal, he argued there 1 was insufficient evidence that either prior conviction was a “serious felony.”); (Dkt. 2 38 at 16–17) (In his federal habeas petition, Petitioner asserted that “his prior 3 convictions did not qualify as serious felonies within the meaning of California’s 4 Three Strikes Law.”). 5 The Petition now pending is governed by

(b), which 6 provides in pertinent part as follows: 7 (b)(1) A claim presented in a second or successive habeas corpus 8 application under section 2254 that was presented in a prior 9 application shall be dismissed. 10 (2) A claim presented in a second or successive habeas corpus 11 application under section 2254 that was not presented in a prior 12 application shall be dismissed unless— 13 (A) the applicant shows that the claim relies on a new rule of 14 constitutional law, made retroactive to cases on collateral review by 15 the Supreme Court, that was previously unavailable; or 16 (B)(i) the factual predicate for the claim could not have been 17 discovered previously through the exercise of due diligence; and 18 (ii) the facts underlying the claim, if proven and viewed in light 19 of the evidence as a whole, would be sufficient to establish by clear 20 and convincing evidence that, but for constitutional error, no 21 reasonable factfinder would have found the applicant guilty of the 22 underlying offense. 23 (3)(A) Before a second or successive application permitted by this 24 section is filed in the district court, the applicant shall move in the 25 appropriate court of appeals for an order authorizing the district court 26 to consider the application. 27

(b) (emphasis added). 28 1 The Petition now pending constitutes a second and successive petition 2 || challenging the same conviction as Petitioner’s prior habeas petition, within the 3 || meaning of

(b). Thus, it was incumbent on Petitioner under 4 || § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing the District 5 || Court to consider his new claim prior to the filing of the instant Petition. 6 || Petitioner’s failure to secure an order from the Ninth Circuit deprives this Court of 7 || subject matter jurisdiction. Cooper v. Calderon,

(9th Cir. 8 |} 2001). 9 IT IS THEREFORE ORDERED that this action be summarily dismissed 10 || pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States 11 || District Courts. 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 pyprne 14 || DATED: July 8, 2021 <(%Z thoy f2 eae y 15 STEPHEN V. WILSON UNITED STATES DISTRICT JUDGE 16 || Presented by: "7 Vines €. Scot 18 || KAREN E. SCOTT 19 || UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28