United States District Court, C.D. California
FRANCIS G. HERNANDEZ, Petitioner,
KEVIN CHAPPELL, Warden of the California State Prison at San Prison, Respondent
Francis G Hernandez, Petitioner, Pro se, San Quentin, CA.
VIRGINIA A. PHILLIPS, UNITED STATES DISTRICT JUDGE.
DEATH PENALTY CASE
ORDER DENYING AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
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) ...