1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CALVIN LEONARD SHARP JR., Case No. 2:20-CV-09839 GW (KES)

12 Petitioner,

ORDER DISMISSING HABEAS

13 v. PETITION AS SUCCESSIVE

14 STUART SHERMAN, 15 Respondent. 16

17 18 On October 26, 2020, Calvin Leonard Sharp Jr. (“Petitioner”) filed a Petition 19 for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 20 § 2254 (“Petition”). (Dkt. 1.) Petitioner also filed: (1) a “Motion for Summary 21 Reversal,” (2) a “Motion for Writ of Error of Coram Nobis,” (3) a “Motion to 22 Accept Request for Judicial Notice,” (4) a “Motion to Accept Habeas Corpus,” (5) a 23 “Nature of Motion for Acquittal,” and (6) “Contentions.” (Dkt. 3–8.) The Petition 24 is the third habeas corpus petition that Petitioner has filed in this Court stemming 25 from his 2012 state court conviction and sentence in Ventura County Superior 26 Court case number 2008014330. 27 Under Rule 4 of the Rules Governing Section 2254 Cases in the United 28 States District Courts, a habeas petition filed by a prisoner in state custody “must” 1 be summarily dismissed “[i]f it plainly appears from the petition and any attached 2 exhibits that the petitioner is not entitled to relief in the district court[.]” For the 3 reasons set forth below, the Petition must be dismissed without prejudice as a 4 second or successive petition pursuant to 28 U.S.C. § 2244(b). 5 I. 6 BACKGROUND 7 A. State Court Proceedings. 8 On November 6, 2009, petitioner pleaded guilty to one count of first degree 9 murder, two counts of attempted murder, two counts of aggravated mayhem, and 10 one count of cruelty to an animal. Sharp v. Warden, No. 2:16-cv-02504-GW-AJW 11 (C.D. Cal. Feb. 1, 2017) (“Sharp I”) (Dkt. 21-1 at 29: Lodged Ventura County 12 Superior Court case number 2008014330 docket).1 Petitioner waived his right to a 13 jury trial with respect to the sanity phase. Id. On November 2, 2012, following a 14 lengthy sanity phase trial, the court found that Petitioner was sane at the time he 15 committed the crimes. Id. at 51–92. Thereafter, on December 5, 2012, the court 16 sentenced Petitioner to state prison for a term of life without the possibility of 17 parole, plus two consecutive life terms and an additional ten-year term. Id. at 93. 18 On May 14, 2014, the California Court of Appeal modified the judgment to include 19 court assessments and ordered the abstract of judgment corrected to reflect 20 sentences of life with the possibility of parole on the attempted murder and mayhem 21 counts and in all other respects affirmed the judgment. People v. Sharp, No. 2D 22

23 1 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the docket 24 sheets and related documents in Sharp I. See Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 157 (1969); see also United States v. Raygoza-Garcia, 902 F.3d 25 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed matters 26 of public record, which may include court records available through PACER.”); Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (A court “may take notice 27 of proceedings in other courts, both within and without the federal judicial system, 28 if those proceedings have a direct relation to matters at issue.”) (citation omitted). 1 CRIM. B245525, 2014 WL 2111679, at *1, 2014 U.S. Dist. LEXIS 3585, at *1 2 (Cal. Ct. App. May 21, 2014). Petitioner did not file a petition for review in the 3 California Supreme Court. (Pet. at 3.) 4 On September 8, 2015, Petitioner filed a habeas petition in the California 5 Supreme Court, which was summarily denied on December 9, 2015. See California 6 Appellate Courts Case Information, Case No. S229104.2 On April 13, 2016, 7 Petitioner filed a habeas petition in Ventura County Superior Court, which was 8 denied on May 19, 2016. Sharp I, Dkt. 21-1 at 102. On September 12, 2016, 9 Petitioner filed a habeas petition in the California Supreme Court, which denied the 10 petition on November 16, 2016, with a citation to In re Clark, 5 Cal. 4th 750, 767– 11 69 (1993). See California Appellate Courts Case Information, Case No. S237134. 12 On January 9, 2019, Petitioner filed a habeas petition, along with a petition 13 for writ of mandate, in the California Court of Appeal, which were summarily 14 denied on January 21, 2020. See California Appellate Courts Case Information, 15 Case Nos. B303495, B303500. On April 2, 2020, Petitioner filed a habeas petition 16 in the California Supreme Court, which was summarily denied on August 26, 2020. 17 See California Appellate Courts Case Information, Case No. S261647. 18 B. Prior Federal Habeas Petitions. 19 On April 12, 2016, Petitioner filed his first habeas petition in federal court, 20 which was dismissed as untimely on November 15, 2017. Sharp I, (Dkt. 1, 36). On 21 March 19, 2018, Petitioner filed his second habeas petition in federal court, which 22 was dismissed as successive on April 11, 2018. Sharp v. Sherman, No. 2:18-cv- 23 02235-GW-FFM (C.D. Cal. filed March 19, 2018) (“Sharp II”) (Dkt. 1, 18). On 24 April 12, 2018, Petitioner filed an application for leave to file a second or 25 successive petition in the Ninth Circuit Court of Appeals. Sharp v. Biter, No. 18- 26 2 The dockets (and some opinions) of the California Courts of Appeal and the 27 California Supreme Court are available at: . 1 71045 (9th Cir. Filed Apr. 12, 2018). On Dec. 4, 2018, the application was denied 2 in a written order, finding that Petitioner had not made a prima facie showing that 3 he was entitled to file a successive petition. Id. (Dkt. 8).3 On October 26, 2020, 4 Petitioner filed the instant Petition. 5 II. 6 DISCUSSION 7 The instant Petition raises a single claim for relief: the trial court’s erroneous 8 acceptance of his guilty plea combined with a not guilty plea by reason of insanity 9 on the same charges deprived Petitioner of his constitutional rights to the effective 10 assistance of counsel, a fair trial, a jury trial, and due process of law. (Pet. at 16– 11 19.) 12 The Petition now pending is governed by 28 U.S.C. § 2244(b), which 13 provides in pertinent part as follows: 14 (b)(1) A claim presented in a second or successive habeas corpus 15 application under section 2254 that was presented in a prior 16 application shall be dismissed. 17 (2) A claim presented in a second or successive habeas corpus 18 application under section 2254 that was not presented in a prior 19 application shall be dismissed unless— 20 (A) the applicant shows that the claim relies on a new rule of 21 constitutional law, made retroactive to cases on collateral review by 22 the Supreme Court, that was previously unavailable; or 23 (B)(i) the factual predicate for the claim could not have been 24 discovered previously through the exercise of due diligence; and 25

26 3 On September 16, 2020, Petitioner filed a request for enlargement of time to file a habeas petition, which was denied on September 29, 2019, as an invalid 27 request to seek an advisory opinion. Sharp v. Warden, Case No. 2:20-cv-08598- 28 GW-KES (C.D. Cal. filed Sept. 16, 2020) (Dkt. 1, 3). 1 (ii) the facts underlying the claim, if proven and viewed in light 2 of the evidence as a whole, would be sufficient to establish by clear 3 and convincing evidence that, but for constitutional error, no 4 reasonable factfinder would have found the applicant guilty of the 5 underlying offense. 6 (3)(A) Before a second or successive application permitted by this 7 section is filed in the district court, the applicant shall move in the 8 appropriate court of appeals for an order authorizing the district court 9 to consider the application. 10 28 U.S.C. § 2244(b) (emphasis added). 11 The Petition now pending constitutes a second and successive petition 12 challenging the same conviction as Petitioner’s prior habeas petitions, within the 13 meaning of 28 U.S.C. § 2244(b). Thus, it was incumbent on Petitioner under 14 § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing the District 15 Court to consider his new claims prior to the filing of the instant Petition. 16 Petitioner’s failure to secure an order from the Ninth Circuit deprives this Court of 17 subject matter jurisdiction. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 18 2001). 19 The other motions filed by Petitioner (Dkt. 3–8) are alternative requests 20 under state law to attack his conviction and go to the merits of his habeas request. 21 See, e.g., In re Horton, 54 Cal. 3d 82, 87 (1991) (noting that a motion for summary 22 reversal is an alternative to a writ of habeas corpus); Martinez v. Lockyer, 453 F. 23 Supp. 2d 1150, 1152 (C.D. Cal. 2006) (“It is well settled that the writ of error 24 coram nobis is not available in federal court to attack state criminal judgments. A 25 writ of error coram nobis can only issue to aid the jurisdiction of the court in which 26 the conviction was had.”) (citation omitted). Neither the Petition nor the alternative 27 motions address the successive petition issue. Without an order from the Ninth 28 Circuit authorizing this Court to consider Petitioner’s successive Petition, the Court 1 || lacks the subject matter jurisdiction to address either the Petition or any of the other 2 || motions. 3 IT IS THEREFORE ORDERED that this action be summarily dismissed 4 || pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States 5 || District Courts.. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 | DATED: November 5, 2020 Mfg 76, te

10 GEORGE H. WU

UNITED STATES DISTRICT JUDGE

Presented by: 13 Thonn E. Sst? 14 KAREN E. SCOTT

UNITED STATES MAGISTRATE JUDGE

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