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Wilson v. Rackley

United States District Court, C.D. California, Eastern Division

April 17, 2015

JEROME WILSON, Petitioner,
RON RACKLEY, Warden, Respondent.


PAUL L. ABRAMS, Magistrate Judge.


Jerome Wilson ("petitioner") initiated this action on March 24, 2015, by filing a "F[ir]st Amended Petition for Writ of Habeas Corpus by a Person in State Custody"[1] pursuant to 28 U.S.C. § 2254 ("Petition" or "Pet."). The Petition challenges his 1999 conviction in the San Bernardino County Superior Court, case number FWV012851, for second degree burglary (Cal. Penal Code § 459), second degree robbery (Cal. Penal Code § 211), assault with a deadly weapon (Cal. Penal Code § 245(b)), and possession of a semi-automatic pistol (Cal. Penal Code § 12022.5(a)). (Pet. at 2).

On March 30, 2015, the Court ordered petitioner to show cause why the Petition should not be dismissed as fully unexhausted[2] ("Order to Show Cause"). (Dkt. No. 4). On April 15, 2015, petitioner filed a Response to the Order to Show Cause, demonstrating that he previously had raised the eight claims in the Petition in a habeas petition to the California Supreme Court, and the California Supreme Court had denied his habeas petition on February 18, 2015. (Dkt. No. 7). Accordingly, the Court's March 30, 2015, Order to Show Cause is discharged.

The Court observes that on October 22, 2001, petitioner filed an earlier habeas petition in this Court, in case number ED CV 01-809-R (PLA) ("ED CV 01-809"), also challenging his 1999 conviction ("2001 Petition"). The 2001 Petition was denied and dismissed with prejudice on the merits pursuant to the Judgment entered on March 11, 2003. (Case No. ED CV 01-809, Dkt. No. 59). Petitioner's request for a certificate of appealability was denied by the District Judge on April 1, 2003. (Case No. ED CV 01-809, Dkt. No. 62). Petitioner's request for a certificate of appealability to the Ninth Circuit was granted in part, on the issue of whether the district court was correct in its procedural rulings regarding petitioner's request for stay and leave to amend the 2001 Petition. (Case No. ED CV 01-809, Dkt. No. 66). On October 19, 2005, the Ninth Circuit affirmed the district court's Judgment. (Case No. ED CV 01-809, Dkt. No. 70).

On January 4, 2007, petitioner filed another habeas petition in this Court, in case number ED CV 07-14-R (PLA) ("ED CV 07-14"), also challenging his 1999 conviction ("2007 Petition"). On May 11, 2007, respondent filed a motion to dismiss the petition as successive. (See ED CV 07-14, Dkt. Nos. 24-25, 28). On May 24, 2007, conceding that the 2007 Petition was successive and that he had failed to seek permission from the Ninth Circuit to file a successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A), petitioner moved to withdraw the 2007 Petition. (See ED CV 07-14, Dkt. No. 27). On June 6, 2007, the district court granted petitioner's request and dismissed the 2007 Petition without prejudice. (ED CV 07-14, Dkt. No. 28).


A federal habeas petition is successive if it raises claims that were or could have been adjudicated on the merits in a previous petition. Cooper v. Calderon , 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam). The AEDPA provides that a claim presented in a second or successive federal habeas petition that was not presented in a prior petition 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.

28 U.S.C. § 2244(b)(2)(A), (B).

Furthermore, "[b]efore 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." 28 U.S.C. § 2244(b)(3)(A).

In his 2001 Petition, petitioner raised the following grounds for relief: (1) the eyewitness identifications were tainted by an impermissible in-field lineup, and the trial court improperly denied his motion for a lineup; and (2) the trial court violated petitioner's right to due process when it failed to grant petitioner's motion to exclude the in-court identifications of petitioner, because the in-field showup was impermissibly suggestive. (See ED CV 01-809, Dkt. No. 57; see also Pet. at 17[3]). The Court is unable to discern from its docket the claims raised in petitioner's 2007 Petition, which he voluntarily dismissed as successive. (ED CV 07-14, Dkt. No. 27).

In the instant Petition, petitioner raises the following claims: (1) Reason for Delay ("Ground One"); (2) ineffective assistance of appellate counsel for failing to argue that trial counsel was ineffective for failing to object to petitioner's illegal sentence ("Ground Two"); (3) the trial court erred in refusing to recall petitioner's twenty-five years to life sentence, which was imposed but stayed ("Ground Three"); (4) the sentencing court violated petitioner's statutory and constitutional rights by imposing an excessive sentence ("Ground Four"); (5) the trial court acted in excess of its jurisdiction by imposing an unauthorized sentence "when it erroneously stays or fails to stay execution of a sentence or fails to impose or strike an... enhancement in violation of statutory and constitutional provisions" ("Ground Five"); (6) the sentencing court breached a 1992 plea agreement ("Ground Six"); (7) the abstract of judgment was not sufficient evidence to prove a prior conviction ("Ground Seven"); and (8) the superior court and court of appeal failed to act when they denied petitioner's petition for habeas corpus, in violation of the 14th Amendment[4] ("Ground Eight"). (Pet. at 5-16).

Because the 2001 Petition was denied on the merits, the instant Petition is considered to be a successive application. Even if petitioner's claims in the instant Petition satisfied the AEDPA standards for filing a successive petition, he nevertheless is required to seek authorization from the Ninth Circuit before filing a successive petition. 28 U.S.C. § 2244(b)(3)(A). Here, there is no indication that petitioner has obtained such permission from the Ninth Circuit. See Burton v. Stewart , 549 U.S. 147, 153, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (AEDPA requires petitioner to receive authorization from the Court of Appeals before filing a second habeas petition). It therefore appears that the Court is without jurisdiction to entertain the current Petition under 28 U.S.C. § 2244(b). See id.; Cooper , 274 F.3d at 1274 ("When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.'").


Even if not successive, or even if the Ninth Circuit grants permission to file a successive petition, the instant Petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") one-year statute of limitations period, as set forth under 28 U.S.C. § 2244(d). See Calderon v. U.S. Dist. Court (Beeler) , 128 F.3d 1283, 1286 (9th Cir. 1997).[5] In most cases, the limitation period begins to run from "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).

Petitioner was convicted by a San Bernardino County Superior Court jury on July 7, 1999. (Pet. at 2). His petition for review to the California Supreme Court was denied on February 14, 2001 (Pet. at 3), and his conviction became final on May 15, 2001, when the ninety-day period for filing a petition for certiorari in the Supreme Court expired. Bowen v. Roe , 188 F.3d 1157, 1158-59 (9th Cir. 1999). Thus, the one-year limitation period for seeking federal habeas relief began to run on May 16, 2001, and expired on May 15, 2002. See 28 U.S.C. § 2244(d).

On its face, therefore, it appears that the instant Petition, in addition to being successive, is barred by the statute of limitations.


Based on the foregoing, petitioner is ordered to show cause (1) why the instant Petition should not be dismissed as successive; and (2) why the instant Petition should not be dismissed as time barred. Specifically, no later than May 15, 2015, petitioner must submit to the Court the following: (1) documentation showing that, pursuant to 28 U.S.C. § 2244(b)(3)(A), he properly filed a motion in the Ninth Circuit for an order authorizing the district court to consider a successive petition, and that the Ninth Circuit issued such an order; and (2) a response making clear his arguments, if any, as to why the Petition should not be dismissed as time barred. All facts relied upon by petitioner must be proved by testimony contained in a declaration signed under penalty of perjury pursuant to 28 U.S.C. § 1746, or in properly authenticated documents.

Failure to respond by May 15, 2015, will result in the instant Petition being summarily dismissed as successive and/or as barred by the statute of limitations.[6]

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