United States District Court, C.D. California
April 14, 2014
JOE LOUIS VALENTINE, Petitioner,
G.D. LEWIS, Respondent.
OPINION and ORDER
VALERIE BAKER FAIRBANK, Senior District Judge.
Overruling the Petitioner's Objections; Adopting the R&R as Modified; Referring the Petition to the U.S. Court of Appeals per Ninth Circuit Rule 22-3(a); Dismissing the Petition without Prejudice for Lack of Subject-Matter Jurisdiction; Denying a Certificate of Appealability
This is a pro se state prisoner's action for habeas corpus relief pursuant to 28 U.S.C. § 2254. The Magistrate Judge has issued a Report and Recommendation ("R&R") recommending that the petition be dismissed with prejudice because petitioner has not obtained leave from the U.S. Court of Appeals for the Ninth Circuit ("the Circuit") to file a second-or-successive habeas petition attacking the same conviction or sentence. First, the Court will supplement the R&R by referring the petition to the Circuit for consideration as an application for leave to file a second-or-successive habeas petition, as required by Ninth Circuit Rule. Second, for the reasons that follow, the Court will followed the recommendation to dismiss the petition for lack of subject-matter jurisdiction; the dismissal, however, will be without prejudice, not with prejudice as the R&R urges. Third, the Court will deny a certificate of appealability ("COA"). Finally, the Court will enter judgment by separate document as required by FED. R. CIV. P. 58.
Two Prior Federal Habeas Petitions. In 1982, petitioner was convicted in L.A. County Superior Court case number A366030 of conspiracy to commit murder. In 1989, petitioner filed a section 2254 habeas petition in this Court challenging that conviction; another member of this court denied that petition and dismissed it with prejudice in 1990, and the Ninth Circuit affirmed in 1992. In 1993, petitioner filed another section 2254 habeas petition in this court challenging that same 1983 conviction; in 1994, another member of this court dismissed that second petition with prejudice, and both the district court and the Ninth Circuit denied a certificate of probable cause (the predecessor to the certificate of appealability).
The Current, Third Federal Habeas Petition. The instant petition, filed on October 2, 2013, challenges the same aforementioned 1983 L.A. County Superior Court Case No. A366030 conviction and sentence. The respondent has moved to dismiss the petition on the ground that petitioner has failed to show that he has obtained leave from the Ninth Circuit to file a second-or-successive federal habeas petition challenging the same conviction and/or sentence, and the Magistrate Judge rightly recommends granting the motion to dismiss.
The pending petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132, 110 Stat. 1214) ("AEDPA") which became effective April 24, 1996. As amended by AEDPA, 28 U.S.C. § 2244(b) now reads in pertinent part as follows:
(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless -
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B) (I) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
(3) (A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
Because the petition now pending challenges the same conviction as his two prior federal habeas petitions, it constitutes a second and/or successive petition within the meaning of 28 U.S.C. § 2244(b). To the extent that petitioner seeks to pursue the same claims he previously asserted, the petition is barred by the provisions of 28 U.S.C. § 2244(b)(1). See, e.g., Timmons v. Spearman E., 2014 WL 1340224, *2 (C.D. Cal. Apr. 3, 2014) (Real, J.) ("[T]o the extent that Petitioner is now purporting to raise claims previously raised in [prior federal habeas petition], § 2241(b)(1) compels dismissal of those claims."); Myers v. Curry, 2008 WL 4195934, *2 (C.D. Cal. Sept. 2, 2008) (Fairbank, J.) ("To the extent the instant Petition merely asserts the same claim that was previously asserted, the petition is subject to dismissal pursuant to § 2244(b)(1).").
To the extent that petitioner asserts claims not asserted in his two prior federal habeas petitions, it was incumbent on him under § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing the district court to consider the petition, prior to his filing of it in this court. "To obtain leave to file, petitioner would have shouldered the burden of satisfying a Circuit panel that his petition satisfies the requirements of 28 U.S.C. § 2255(h)", Jackson v. Hedgpeth, 2013 WL 3864216, *3 (C.D. Cal. July 24, 2013), which provides as follows:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h); see also 9th Cir. R. 22-3, Applications for Authorization to File Second or Successive § 2254 Petition. Petitioner's failure to secure such an order from the Circuit deprives the Court of subject-matter jurisdiction at this time. See, e.g., Hill v. Warden, 2014 WL 1093041, *1 (C.D. Cal. Mar. 18, 2014) ("That petition was summarily dismissed for lack of subject matter jurisdiction as a second or successive petition within the meaning of 28 U.S.C. § 2244(b)....").
It is still possible, however, that petitioner will obtain such leave from the Ninth Circuit. The case, therefore, will be dismissed without prejudice to its re-filing in this court if and when petitioner obtains leave from the Circuit to do so. See, e.g., Castaneda v. Long, No. 13-959-PA, 2014 WL 996490 (C.D. Cal. Mar. 13, 2014) ("The current federal 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.") (emphasis added); Jointer v. Gonzales, 2014 WL 935293, *1 n.4 (C.D. Cal. Mar. 10, 2014) (Manuel Real, J.) ("[T]he District Judge denied the 2011 Petition as successive and dismissed the action without prejudice to its refiling when Petition[er] obtained the requisite permission from the Ninth Circuit to file a successive petition in the District Court."); McGauthy v. Venezuela, 2013 WL 3668463, *2 (C.D. Cal. July 12, 2013) (George Wu, J.) (same). Accord U.S. v. Briley, 2001 WL 185471, *1 (N.D. Ill. Feb. 26, 2001) ("[T]his Court summarily dismisses the petition without prejudice to its possible renewal if Perkins were hereafter to obtain leave to file from the Court of Appeals.").
NINTH CIRCUIT RULE 22-3(a) REQUIRES "REFERRAL" OF THIS ACTION
Ninth Circuit Rule 22-3(a) states, in part, that "[i]f a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals." The Supreme Court adheres to the venerable principle of construction that the word "shall" indicates that the action is mandatory, not optional or discretionary. See Sebelius v. Auburn Regional Med. Ctr., ___ U.S. ___, 133 S.Ct. 817, 824 (2013) (referring to "the mandatory word shall'"); Gonzales v. Thaler, ___ U.S. ___, 132 S.Ct. 641 (2012) (the word "shall" in 28 U.S.C. § 2253(c)(3) underscores the mandatory nature of that provision); Nat'l Ass'n of Homebuilders v. Defenders of Wildlife, 544 U.S. 644, 661, 127 S.Ct. 2518 (2007) ("Section 402(a) of the CWA provides, without qualification, that the EPA shall approve' a transfer application unless it determines that.... By its terms, the statutory language is mandatory...."); Lopez v. Davis, 531 U.S. 230, 241, 121 S.Ct. 714 (2001).
The Ninth Circuit likewise holds that "use of the words any' and shall' indicate that [a provision] is not permissive, " In re HP Inkjet Printer Litig., 716 F.3d 1173, 1181 (9th Cir. 2013) (citing, inter alia, Alabama v. Bozeman, 533 U.S. 146, 153, 121 S.Ct. 2079 (2001) ("The word shall' ordinarily is the language of command.") (quoting Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818 (1935))); U.S. v. Carter, 742 F.3d 440, 446 (9th Cir. 2014) ("[B]y using the words shall order' in a forfeiture statute, Congress could not have chosen stronger words to express its intent that forfeiture be mandatory....'") (quoting U.S. v. Monsanto, 491 U.S. 600, 607, 109 S.Ct. 2657 (1989)); U.S. v. Chavez, 627 F.2d 953, 954-55 (9th Cir. 1980). See, e.g., Krangel v. Crown, 791 F.Supp. 1436, 1440 (S.D. Cal.) (calling "shall" "a clearly mandatory term"), app. den., 968 F.2d 914 (9th Cir. 1992); William v. Bd. of Prison Terms, 2006 WL 463128, *3 (E.D. Cal. Feb. 24, 2006) ("What the Court found significant in the... parole statutes, was mandatory language: the use of the word shall'....") (citing Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11-12, 99 S.Ct. 2100 (1979) and Bd. of Pardons v. Allen, 482 U.S. 369, 377-78, 108 S.Ct. 2415 (1987)), R&R adopted, 2006 WL 845594 (E.D. Cal. Mar. 30, 2006).
Therefore, when confronted with a second or successive habeas petition attacking the same conviction or sentence as a prior federal habeas petition, a federal district court has no choice but to "refer" the petition to the U.S. Court of Appeals for the Ninth Circuit. Failure to do so would violate the plain and mandatory language of Ninth Circuit Rule 22-3(a).
The question arises whether the Court can both "refer" this petition to the Circuit and then dismiss the action without prejudice for lack of jurisdiction. Like numerous judges in our Circuit, the Court concludes that this is the appropriate course of action. The lack of subject-matter jurisdiction requires the Court to dismiss, and Ninth Circuit Rule 22-3(a) plainly requires the Court to refer the petition to the Circuit, and there is no authority suggesting a conflict between the two requirements. Therefore, the Court will do both. See, e.g., Castaneda v. Long, 2014 WL 996490, *1 (C.D. Cal. Mar. 13, 2014) ("[T]his action 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 Court is directed to refer the [c]urrent [f]ederal [p]etition to the... Ninth Circuit... pursuant to Ninth Circuit Rule 22-3(a)."); Blanco v. Valenzuela, 2014 WL 111453 (C.D. Cal. Jan. 9, 2014) (Walter, J.) (same); Parham v. Diaz, 2013 WL 5310760, *1 (C.D. Cal. Sept. 19, 2013) (Klausner, J.); Reed v. Roe, 2013 WL 1970240, *1 (C.D. Cal. May 10, 2013) (Wright, J.); Jones v. Harris, 2013 WL 1390036, *1 (C.D. Cal. Mar. 15, 2013) (Wilson, J.); Burts v. Yates, 2012 WL 3019950, *1 (C.D. Cal. July 23, 2012) (Pregerson, J.); Jones v. Harrington, 2012 WL 2573207, *1 (C.D. Cal. June 29, 2012) (Gee, J.).
CERTIFICATE OF APPEALABILITY
Absent a COA, "an appeal may not be taken from a final decision of a district judge in a habeas corpus proceeding or a proceeding under 28 U.S.C. § 2255", Chafin v. Chafin, ___ U.S. ___, 133 S.Ct. 1017, - (2013) (Ginsburg, J., joined by Scalia & Breyer, JJ., concurring), or from a district judge's final order in a § 2254 proceeding,  and the district court must issue or deny a COA when it enters a final order adverse to the petitioner, see Rule 11(a) of Rules Governing § 2254 Cases. The court must consider each claim separately, Mayfield v. Woodford, 270 F.3d 915, 922 (9th Cir. 2001) (citation omitted), which means the court may grant a COA on one claim and not on others.
In practice, "[i]t is a rare step' for a district court to issue a COA, " McDaniels v. McGrew, 2013 WL 4040058, *3 (C.D. Cal. Aug. 8, 2013) (Fairbank, J.) (quoting Murden v. Artuz, 497 F.3d 178, 199 (2d Cir. 2007) (Hall, J., concurring in judgment)). A COA may issue only if "the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "The Court is mindful that it must resolve doubts about the propriety of a COA in the petitioner's favor'", Adams v. Hedgpeth, No. LA CV 14-01464-VBF Doc. ___ at 8 (C.D. Cal. Apr. 10, 2014) (quoting Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (en banc)), but no such doubt exists here. Reasonable jurists would not find it debateable that the petition mat be dismissed without prejudice for lack of subject-matter jurisdiction because petitioner has not alleged that he obtained leave from the Ninth Circuit to file a second-or-successive habeas petition. Nor would reasonable jurists find it debateable that Ninth Circuit Rule 22-3(a) requires this Court to refer the petition to the U.S. Court of Appeals, leaving the Court no discretion or authority to do otherwise. In the posture of this case, the petition is not "adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 3385 n.4 (1983).
Petitioner's Objection [Doc #14] is OVERRULED.
The Court ADOPTS the Report and Recommendation [Doc #12] with the following modifications:
Pursuant to Ninth Circuit Rule 22-3(a), the Court REFERS the habeas petition to the U.S. Court of Appeals for the Ninth Circuit for consideration as an application for leave to file a second-or-successive habeas petition. The Clerk of Court SHALL SEND a copy of the habeas petition and a copy of this Order to the Clerk of the U.S. Court of Appeals for the Ninth Circuit.
This action is then DISMISSED without prejudice for lack of subject-matter jurisdiction.
A Certificate of Appealability is DENIED. This is a final order, but it will not be appealable if petitioner does not obtain a certificate of appealability from the U.S. Court of Appeals.
As required by FED. R. CIV. P. 58(a)(1), the judgment will be issued separately.