United States District Court, C.D. California, Western 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.
Jonathan Copeland ("petitioner") initiated this action on June 2, 2015, by filing a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("2015 Petition" or "2015 Pet."). The Petition challenges his March 25, 2004, conviction in the Los Angeles County Superior Court, case number NA055334/5224085, for first degree murder (Cal. Penal Code § 187(a)); attempted murder (Cal. Penal Code §§ 187(a), 664); possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1)); and resisting arrest (Cal. Penal Code § 148(a)(1)). (2015 Pet. at 2; see also Case No. CV 06-6026-JFW (FMO) ("CV 06-6026"), Dkt. No. 8).
The Court observes that on September 21, 2006, petitioner filed an earlier habeas petition in this Court, in case number CV 06-6026, also challenging his 2004 conviction ("2006 Petition"). The 2006 Petition was dismissed with prejudice on the merits, pursuant to the Judgment entered on September 25, 2007. (Case No. CV 06-6026, Dkt. No. 16). Petitioner's request for a certificate of appealability was denied by the District Judge on October 22, 2007. (Case No. CV 06-6026, Dkt. No. 18). His request to the Ninth Circuit for a certificate of appealability was denied on June 23, 2008. (Case No. CV 06-6026, Dkt. No. 22).
A. 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 2006 Petition, petitioner raised the following grounds for relief: (1) petitioner's due process rights were violated when the trial court permitted the prosecutor to introduce evidence that petitioner had attempted to escape from custody; (2) petitioner's due process rights were violated because the jury had insufficient evidence to convict him of the attempted murders of Gilbert and Oscar Fonoti; and (3) the firearm-use enhancements were contrary to state law. (Case No. 06-6026, Dkt. No. 8 at 9). As mentioned above, the 2006 Petition was denied on the merits. In the instant 2015 Petition, petitioner appears to raise at least the following claims: (1) trial counsel rendered ineffective assistance by failing to object to prejudicial evidence, and misconduct by the prosecution; (2) petitioner's constitutional rights were violated by suggestive identification procedures, and false testimony and statements; and (3) petitioner's constitutional rights were violated by "denial" DNA testing authorized by Penal Code section 1405. (2015 Pet. at 3-A to 4-U).
Because the 2006 Petition was denied on the merits, the instant 2015 Petition is considered to be a successive application. Even if petitioner's claims in the 2015 Petition satisfied the AEDPA standards for filing a successive petition - which they do not appear to do - he nevertheless is required to seek and obtain authorization from the Ninth Circuit before filing a successive petition. 28 U.S.C. § 2244(b)(3)(A). 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 2015 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.'").
B. STATUTE OF LIMITATIONS
Even if not successive, or even if the Ninth Circuit grants petitioner permission to file a successive petition, the 2015 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). In most cases, the limitation period begins to run from "the date on which the judgment ...