United States District Court, C.D. California, Eastern Division
ORDER TO SHOW CAUSE RE: DISMISSAL OF HABEAS PETITION AS SUCCESSIVE AND/OR AS BARRED BY THE EXPIRATION OF THE STATUTE OF LIMITATIONS
PAUL L. ABRAMS, Magistrate Judge.
A. PROCEDURAL HISTORY
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" 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 ("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).
B. SECOND OR SUCCESSIVE PETITIONS
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). The Court is unable to discern ...