United States District Court, C.D. California, Western Division
ORDER OF DISMISSAL
ANDRÉ BIROTTE, Jr., District Judge.
On April 16, 2015, pro se petitioner, in state custody, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition"). Petitioner challenges his 2003 conviction for first degree murder, with personal firearm use and criminal street gang findings, in Los Angeles County Superior Court (Case No. BA238176). As best the Court can glean from petitioner's allegations, the Petition alleges the following claims: (1) The criminal street gang finding under Cal. Penal Code § 186.22(b)(1) must be stricken in light of People v. Rodriguez, 55 Cal.4th 1125, 290 P.3d 1143, 150 Cal.Rptr.3d 533 (2012); (2) The trial court erred in admitting evidence in support of the criminal street gang allegation when "there was only one identifiable street gang member tried before the jury;" (3) The murder conviction should be reversed based on the admission of evidence related to the criminal street gang allegation, in violation of petitioner's Sixth Amendment right to a fair trial; and (4) Petitioner received ineffective assistance of counsel based on his trial counsel's failure to object to evidence related to the criminal street gang allegation. (Petition, Attachment at 7-14).
On January 8, 2007, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody. See Kenneth Mancil Brown v. Jame E. Tilton, CV 07-0195-SGL(JTL) (Docket Entry No. 1), in which he challenged the same 2003 conviction and criminal street gang finding. On August 28, 2007, the Court issued an Order and Judgment denying the habeas petition with prejudice, in accordance with the findings, conclusions and recommendations of the Magistrate Judge. (Id.; Docket Entry Nos. 21-22). On October 4, 2007, the Court denied petitioner's request for a certificate of appealability. (Id.; Docket Entry No. 25).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), enacted on April 24, 1996, provides in pertinent part that:
(a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in §2255.
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application 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 fact finder would have found the applicant guilty of the underlying offense.
(3)(A) Before 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.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a ...