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Garner v. Brazelton

United States District Court, Ninth Circuit

November 12, 2013

CHRISTOPHER E. GARNER, Petitioner,
v.
P.D. BRAZELTON, Respondent.

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE

STEPHEN V. WILSON, District Judge.

I. SUMMARY

On October 31, 2013, Christopher E. Garner ("petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Current Petition") challenging a 2007 conviction and sentence in Los Angeles County Superior Court in Case No. PA054310 ("State Case"). Petitioner claims his trial counsel was ineffective in causing petitioner to reject a 12-year plea offer and in failing to communicate a 10-year plea offer to him.

Based on the record (including facts as to which this Court takes judicial notice as detailed below) and the applicable law, the Current Petition is dismissed without prejudice for lack of jurisdiction because petitioner did not obtain the requisite authorization from the Court of Appeals to file a successive petition. Further, the Clerk of the Court is directed to refer the Current Petition to the United States Court of Appeals for the Ninth Circuit (the "Ninth Circuit") pursuant to Ninth Circuit Rule 22-3(a).[1]

II. PROCEDURAL HISTORY[2]

A. State Case - Conviction, Sentencing and Direct Appeal

On March 6, 2007, a Los Angeles County Superior Court ("LASC") jury found petitioner guilty of first degree murder (count 1), first degree robbery (count 2), and first degree burglary (count 3). The jury also found that a principal was armed with a firearm during the offenses. On March 20, 2007, the trial court sentenced petitioner to a total of twenty-six years to life in state prison.

On April 7, 2008, the California Court of Appeal affirmed the judgment in a reasoned decision. On July 9, 2008, the California Supreme Court denied review without comment.

B. State Case - State Post-Conviction Proceedings

On October 3, 2008, petitioner filed a state habeas petition in the LASC, which such court denied on October 6, 2008, in a reasoned decision, rejecting an ineffective assistance of appellate counsel claim on the merits and rejecting petitioner's remaining claims on procedural grounds.

On December 30, 2008, petitioner filed a state habeas petition in the California Court of Appeal, which such court denied on January 13, 2009, without comment or citation to authority.

On April 24, 2009, petitioner filed a state habeas petition in the California Supreme Court, which such court denied on October 28, 2009, without comment or citation to authority.

On April 1, 2011, petitioner filed a petition for writ of coram vobis in the California Court of Appeal, which such court denied on April 11, 2011, without comment or citation to authority.

On April 22, 2011, petitioner filed a petition for review in the California Supreme Court, which such court denied on June 8, 2011, without comment or citation to authority.

On March 4, 2013, petitioner filed a state habeas petition in the California Supreme Court, which such court denied on October 16, 2013, with a citation to People v. Duvall , 9 Cal.4th 464, 474 (1995).[3]

C. First Federal Action, First, Second and Third Ninth Circuit Actions, and Supreme Court Action

On December 21, 2009, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("First Federal Petition") in the First Federal Action (see supra note 2), challenging the validity of his conviction in the State Case on multiple, but different grounds than those alleged in the Current Petition.[4] On January 7, 2011, the Magistrate Judge issued a Report and Recommendation ("First R&R") in which the Magistrate Judge (1) concluded that eight of petitioner's claims (Post Appeal Claims 1-5 and 7-9) had been procedurally defaulted and that one of petitioner's claims (Direct Appeal Claim 3) had not been exhausted (see supra note 4); and (2) recommended that the procedurally defaulted claims be dismissed with prejudice and that the First Federal Petition be denied and the First Federal Action be dismissed without prejudice unless petitioner timely filed a first amended petition for writ of habeas corpus which did not include the unexhausted claim and included only exhausted claims which had not been procedurally defaulted. On January 27, 2011, petitioner filed objections to the First Federal Action R&R. Petitioner did not timely file a first amended petition for writ of habeas corpus in the First Federal Action. On April 21, 2011, this Court adopted the First R&R, dismissed petitioner's procedurally defaulted Post Appeal Claims 1-5 and 7-9 with prejudice and, in the absence of petitioner's filing of a first amended petition containing only exhausted and non-procedurally defaulted claims by the deadline to do so, denied the First Federal Petition and dismissed the First Federal Action without prejudice. Judgment was entered accordingly on April 27, 2011.

On February 9, 2011 - after the Magistrate Judge issued the First R&R, but before judgment was entered in the First Federal Action - petitioner filed a Notice of Appeal in the First Ninth Circuit Action. See supra note 2. On June 28, 2011, the Ninth Circuit dismissed the First Ninth Circuit Action for lack of jurisdiction because the order challenged (the First R&R) was not final or appealable when the Notice of Appeal in the First Ninth Circuit Action was filed. On July 20, 2011, the Ninth Circuit issued the mandate in the First Ninth Circuit Action.

On May 19, 2011 - after judgment was entered in the First Federal Action - petitioner filed another Notice of Appeal in the Second Ninth Circuit Action. See supra note 2. On October 19, 2012, the Ninth Circuit denied petitioner's request for a certificate of appealability in the Second Ninth Circuit Action.

On April 17, 2012, petitioner filed a motion for reconsideration in the District Court, which this Court denied on February 26, 2013. On March 25, 2013, petitioner filed a Notice of Appeal in the Third Ninth Circuit Action, challenging the denial of the motion for reconsideration. On June 18, 2013, the Ninth Circuit denied petitioner's request for a certificate of appealability in the Third Ninth Circuit Action.

On February 7, 2013, petitioner filed a petition for writ of certiorari in the Supreme Court Action, which such Court denied on June 17, 2013.

D. Second Federal Action and Fourth Ninth Circuit Action

On September 28, 2011, petitioner filed a "Petition for Writ of Error Coram Nobis Pursuant to 28 U.S.C. § 1651; and Motion to Vacate Judgment Pursuant to F.R.C.P. Rule 60(B)(3)(4)(6)" ("Second Federal Petition"), again challenging the judgment in the State Case. Petitioner claimed that the trial judge in the State Case essentially directed a verdict against petitioner by using incomplete verdict forms, and consequently, that petitioner's sentence was unauthorized.

On August 31, 2012, the Magistrate Judge issued a Report and Recommendation ("Second R&R") in which the Magistrate Judge recommended that the Second Federal Petition, whether construed as a coram nobis petition, a Fed.R.Civ.P. 60(b) motion, or a petition for writ of habeas corpus, be dismissed for lack of jurisdiction because, among other things, it was successive and petitioner had not obtained authorization from the Ninth Circuit to file it. On September 18, 2012, petitioner filed objections to the Second R&R. On February 5, 2013, this Court adopted the Second R&R and dismissed the Second Federal Petition without prejudice for lack of jurisdiction. Judgment was entered accordingly on February 8, 2013.

On February 28, 2013, petitioner filed a Notice of Appeal in the Fourth Ninth Circuit Action. On June 18, 2013, the Ninth Circuit denied petitioner's request for a certificate of appealability in the Fourth Ninth Circuit Action.

III. DISCUSSION

Before a habeas petitioner may file a second or successive petition in a district court, he must apply to the appropriate court of appeals for an order authorizing the district court to consider the application. Burton v. Stewart , 549 U.S. 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(3)(A)). This provision "creates a gatekeeping' mechanism for the consideration of second or successive applications in district court." Felker v. Turpin , 518 U.S. 651, 657 (1996); see also Reyes v. Vaughn , 276 F.Supp.2d 1027, 1028-30 (C.D. Cal. 2003) (discussing applicable procedures in Ninth Circuit). A district court lacks jurisdiction to consider the merits of a second or successive habeas petition in the absence of proper authorization from a court of appeals. Cooper v. Calderon , 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen , 157 F.3d 661, 664 (9th Cir. 1998)), cert. denied, 538 U.S. 984 (2003).

The court of appeals may authorize the filing of a second or successive petition only if it determines that the petition makes a prima facie showing that at least one claim within the petition satisfies the requirements of 28 U.S.C. Section 2244(b), i.e., that a claim which was not presented in a prior application (1) relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court; or (2) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence and the facts underlying the claim would be sufficient to establish that, but for constitutional errors, no reasonable factfinder would have found the applicant guilty of the underlying offense. Nevius v. McDaniel , 104 F.3d 1120, 1120-21 (9th Cir. 1997); Nevius v. McDaniel , 218 F.3d 940, 945 (9th Cir. 2000).

A second or subsequent habeas petition is not considered "successive" if the initial habeas petition was dismissed for a technical or procedural reason, rather than on the merits. See Slack v. McDaniel , 529 U.S. 473, 485-487 (2000) (second habeas petition not "successive" if initial habeas petition dismissed for failure to exhaust state remedies); Stewart v. Martinez-Villareal , 523 U.S. 637, 643-645 (1998) (second habeas petition not "successive" if claim raised in first habeas petition dismissed as premature); but see McNabb v. Yates , 576 F.3d 1028, 1030 (9th Cir. 2009) (dismissal on statute of limitations grounds constitutes disposition on the merits rendering subsequent petition "second or successive"); Henderson v. Lampert , 396 F.3d 1049, 1053 (9th Cir.) (dismissal on procedural default grounds constitutes disposition on the merits rendering subsequent petition "second or successive"), cert. denied, 546 U.S. 884 (2005); Plaut v. Spendthrift Farm, Inc. , 514 U.S. 211, 228 (1995) (dismissal for failure to prosecute treated as judgment on the merits) (citations omitted); Reyes v. United States, 1999 WL 1021815 *3 (E.D.N.Y. 1999) (dismissal of first habeas petition for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) constitutes dismissal on the merits and renders subsequently filed habeas petition second or successive).

Here, as noted above, the Court denied eight of petitioner's claims in the First Federal Petition with prejudice because they had been procedurally defaulted - an adjudication which is deemed to be on the merits. See Henderson , 396 F.3d at 1053. Although the First Federal Petition was otherwise dismissed without prejudice as "mixed, " this does not alter the successive nature of the Current Petition because eight claims in the First Federal Petition were rejected on the merits and because neither of petitioner's current claims were raised in the First State Petition. See supra note 2; Slack v. McDaniel , 529 U.S. at 485-487 (second habeas petition not "successive" if initial habeas petition dismissed as "mixed" petition containing exhausted and unexhausted claims where no claim in initial petition adjudicated on the merits) (emphasis added); Stewart v. Martinez-Villareal , 523 U.S. at 643-645 (second habeas petition not "successive" and should be treated as re-filing of earlier claim if it raises claim originally raised in first habeas petition which claim was dismissed as premature, even though other claims in first habeas petition adjudicated on the merits) (emphasis added); Olvera v. Gonzales , 834 F.Supp.2d 944, 948 (C.D. Cal. 2011) (federal petition successive where two claims raised in prior federal petition denied with prejudice as procedurally defaulted and petitioner did not re-raise only claim from prior petition which was dismissed as unexhausted).[5]

Accordingly, the Current Petition is successive, and, since petitioner filed it without authorization from the Ninth Circuit, this Court lacks jurisdiction to consider it. See 28 U.S.C. § 2224(b).

IV. ORDER

IT IS THEREFORE ORDERED that the Current Petition is dismissed without prejudice and that judgment be entered accordingly, and that the Clerk refer the Current Petition to the Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a).

IT IS SO ORDERED.


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