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Hernandez v. Chappell

United States District Court, C.D. California

February 2, 2015

KEVIN CHAPPELL, Warden of the California State Prison at San Prison, Respondent

Francis G Hernandez, Petitioner, Pro se, San Quentin, CA.





Petitioner, Francis Hernandez, was convicted of first degree murder with special circumstances on April 25, 1983 in the Los Angeles Superior Court. On May 9, 1983, the same jury that convicted Petitioner returned a penalty phase death verdict. His conviction and sentence were upheld on appeal by the California Supreme Court on November 28, 1988. The United States Supreme Court denied certiorari on June 19, 1989.

Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on November 27, 1989 which was denied by that court on May 31, 1990. On August 28, 1990 Petitioner filed a petition for writ of habeas corpus with this Court and that matter was assigned to the Hon. Ronald S.W. Lew. (See CV 90-4638 RSWL.) On August 16, 2011 the Court granted penalty phase relief based on ineffective assistance of counsel, juror misconduct, and cumulative error. That matter is now on appeal. ( See Ninth Circuit Court of Appeals Case No. 11-99013.)

On July 17, 2013, Petitioner, proceeding pro se, filed what he has titled a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241(c)(3). He filed this document in the United States District Court for the Northern District of California. (Docket No. 1.) The matter was transferred to this district pursuant to 28 U.S.C. § 2241(d) which states that the district court for the district wherein such application is filed may transfer the application to the district in which the conviction and sentence were rendered for hearing and determination. This filing is a photocopy, with some changes specific to Petitioner's circumstances, of petitions that have been filed by multiple other death row inmates both in this and also in other federal courts in the State of California. It largely recapitulates arguments Petitioner has previously made to this Court and which this Court has rejected in 2012. ( See CV 12-6293 RSWL.) Petitioner made no attempt to appeal the Court's dismissal in the 2012 case.

The current filing contains multiple references to cases involving another death row inmate, Theodore Shove, who appears to be the inspiration for and motivating force behind the repeated submission of procedurally and legally insufficient filings by multiple death row inmates in this and other federal courts within the State of California. Petitioner's submission here, in addition to containing multiple pages of information regarding Mr. Shove's failed attempts at convincing federal courts of the merits of his positions, is little more than a warmed over version of that which Petitioner submitted in July 2012.


A. The Court Lacks Jurisdiction Over Petitioner's Claims

This Court does not have jurisdiction to hear Petitioner's claims. As of September 16, 2011, when Petitioner filed his Notice of Appeal, this Court was divested of jurisdiction over this matter. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (noting that" [t]he filing of a notice of appeal is an event of jurisdictional significance - it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal."); Visioneering Constr. & Dev. Co. v. United States Fidelity & Guar., 661 F.2d 119, 124 n.6 (9th Cir. 1981) (explaining that " [o]nce a notice of appeal is filed, jurisdiction is vested in the Court of Appeals and the trial court thereafter has no power to modify its judgment in the case or proceed further except by leave of the Court of Appeals"). Accordingly, the Petition must be denied because jurisdiction over this matter rests with Ninth Circuit Court of Appeals. Even if this Court could exercise jurisdiction over this Petition, it would be denied for the following additional reasons.

B. AEDPA Would Provide Jurisdiction in This Case

As before, Petitioner has submitted his petition ostensibly under the statutory authority of 28 U.S.C. § 2241. As the Court has previously explained, that statute merely confers power on the federal courts to grant petitions for writs of habeas corpus provided it can be demonstrated that the prisoner is in custody in violation of the laws of the United States. Prisoners incarcerated under the penalty of death must proceed with their habeas claims under the statutory authority granted by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) codified at 28 U.S.C. § 2254. AEDPA provides the sole mechanism for condemned prisoners to have their habeas claims heard in the federal courts.

C. Petitioner Cannot Prevail on His " Illegal Justice System" Claim

Petitioner uses significant space to discuss his views on the political situation that resulted in the recall of three justices from the California Supreme Court in 1986. Petitioner believes that state court judges are afraid of losing their positions on the bench, like the three Supreme Court justices, unless they categorically affirm death judgments. In his view, state judges are all operating under a conflict of interest in deciding the merits of capital cases because under Article VI, Section 7 of the California Constitution, the Attorney General is a member of the Commission on Judicial Appointments. He believes this creates a conflict because the Attorney General represents the prison wardens in state habeas proceedings. Thus, according to Petitioner, state court judges are beholden to the Attorney General for their jobs, creating a conflict in both the trial of capital cases and the judicial review of the same. Petitioner believes that the affirmance rate (90%) of all capital convictions and the denial rate (95%) of all capital habeas petitions in the state courts demonstrate the conflict when compared to the rate at which federal courts grant capital habeas petitions (73.1%). Petitioner believes that these stated statistics demonstrate that state court judges are biased against capital defendants and habeas petitioners because they wish to keep their jobs. But none of these statistics speak to the rationale that the different jurists applied in reaching their decisions. They also do not take into account changes in the law that may have impacted the cases after the state court decision but before the federal court outcome.

Petitioner's assertions of conflicts of interest in the state judiciary are without support. Under Article VI, Section 7 of the California Constitution, the Attorney General is one of three members of the Commission on Judicial Appointments. The Chief Justice and a State Court of Appeal justice are the other members. Thus, the Attorney General can be, and possibly routinely is, out-voted in her endorsement of various nominees for the state bench. More importantly, the Attorney General is not the appointing authority for state court judges as Petitioner asserts. Article VI, Section 16 of the California Constitution sets forth the manner in which state court judges are appointed. Supreme Court and Court of Appeal justices are elected by the voters to twelve year terms and Superior Court judges are elected to six year terms. When vacancies occur on the various courts, the Governor fills those vacancies by appointment. That appointment must be confirmed by the Commission on Judicial Appointments. Again, the Attorney General has only one of three votes on that Commission and thus it is impossible for her to be the sole appointing authority as Petitioner has characterized. Moreover, an appointee holds office until the Monday after January 1 following the first general election at which the appointee had the right to become a candidate or until an elected judge qualifies. This means that an appointed judge or justice retains their position on the state court at the behest of the voters, not the Attorney General or any other member of the state government.

Petitioner's views on what he perceives to be unfairness in the state court system based on the manner in which judges are selected finds no support in fact. More importantly, for this case specifically, Petitioner has presented no facts to demonstrate unfairness on the part of the jurists involved in his case other than the fact that he is on death row and those judges were placed on the bench in the manner set forth in the California Constitution. Though he has quoted heavily from law review articles written by esteemed jurists, those articles do not amount to " legal notices" or " demands" as Petitioner has put it. They are commentary and nothing more. Moreover, those articles do not support his contention that there is rampant unconstitutional unfairness in the California Court system because of the manner in which judges are selected. In short, there is nothing to support Petitioner's claims that there are conflicts of interest within the California court system that have made the adjudication of his case unfair so as to warrant habeas relief.

D. Petitioner's Attorney Conflict Claim is Illusory

Although Petitioner's pleading also addresses an alleged conflict of interest with his appointed attorneys, his complaint is not about lack of attorney communication or mishandling of the merits of his substantive claims. Rather he bases his claim of an alleged conflict on the fact that his appointed attorneys feel bound by the policies, procedures, rules, and rulings of the California Supreme Court, and further that they have declined to bring claims challenging the California State Court system before this Court.

This is not a bona fide conflict of interest. Rather, it is an attempt to present substantive claims to the Court which Petitioner's attorneys have not raised. Moreover, there is nothing the least bit ineffectual about the attorneys' declination to raise Petitioner's challenges to the California State Court system. Even if this Court believed the California State Court system and its policies were flawed, it is without authority to provide a remedy. Finally, the claims that Petitioner wishes to pursue are not cognizable on federal habeas corpus. For all of these reasons, his attorney conflict claims must be rejected.

E. The Requirements of a Certificate of Appealability Have Not Been Met

The issuance of certificates of appealability in habeas cases is controlled by 28 U.S.C. § 2253. The statute states that unless a judge issues a certificate of appealability, an appeal may not be taken from the final order in a habeas corpus proceeding in which the determination complained of arises out of a process issued by a State court. 28 U.S.C. § 2253(c)(1)(A). Further, the statute states that a certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Petitioner has not made a showing of a cognizable constitutional claim and therefore the Court declines to issue a certificate of appealability.


For the foregoing reasons, the Petition for Writ of Habeas Corpus is DENIED and DISMISSED. In addition, the requirements for the issuance of a certificate of appealability have not been met and therefore, the Court declines to issue the same.



IT IS HEREBY ORDERED, ADJUDGED, AND DECREEED that pursuant to the Order Denying and Dismissing Petitioner for Writ of Habeas Corpus dated February 2, 2015, the PETITION FOR WRIT OF HABEAS CORPUS is DENIED and DISMISSED without prejudice to Petitioner bring these claims after the complete exhaustion of his state court remedies pursuant to 28 U.S.C. § 2254.


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