Wright v. Rackley

          ORDER OF DISMISSAL

          STEPHEN V. WILSON, UNITED STATES DISTRICT JUDGE

         BACKGROUND

         On November 24, 2015, pro se Petitioner, in state custody, filed a “Martinez Motion Under Trevino vs. Thaler 133 S.Ct. (2013).” (Docket Entry No. 1). On December 10, 2015, Petitioner filed an “Amended Martinez Motion Under Trevino vs. Thaler 133 S.Ct. (2013).” (Docket Entry No. 3). On December 15, 2015, Petitioner filed a “Martinez Motion Under Trevino v. Thaler 133 S.Ct. (2013)”, ^[1] which the Court construes as a Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to 28 U.S.C. § 2254 (“Petition”).^[2] Petitioner challenges his 1994 convictions in Los Angeles County Superior Court (Case No. TA030176).^[3] Petitioner alleges that he received ineffective assistance of counsel based on his appellate counsel’s failure to raise the claim that the trial court failed to give him proper warnings and advisements under Faretta v. California, 422 U.S. 806 (1975) prior to granting Petitioner’s motion to represent himself. Petitioner contends that his appellate counsel’s failure serves as “cause” for the procedural default on direct appeal. Petitioner further contends that the California Supreme Court’s denial of Petitioner’s habeas petition did not “clearly and expressly” rely on an independent and adequate state law ground which would bar federal review of Petitioner’s claim. (Petition at 1-14).

         On March 5, 1999, Petitioner filed a Petition for Writ of Habeas Corpus, in which he challenged the same 1994 convictions. See Donald Redick a.k.a. Donald Wright v. C.A. Terhune, et al., Case No. CV 99-2338-HLH (CT); Docket Entry No. 1 (“the prior habeas action”). On September 29, 1999, the Court issued an Order and Judgment denying the habeas petition with prejudice as time-barred, in accordance with the recommendations of the Magistrate Judge. (Id.; Docket Entry Nos. 37-38). On January 6, 2000, the Court denied Petitioner a Certificate of Appealability. (Id.; Docket Entry No. 44). On April 26, 2000, the Ninth Circuit Court of Appeals denied Petitioner’s request for a Certificate of Appealability. (Id.; Docket Entry No. 48).

         On July 20, 2014, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to 28 U.S.C. § 2254, in which he challenged the same 1994 convictions. See Donald Gebe Wright v. Ron Rackley, Case No. CV 14-5922-SVW (AS); Docket Entry No. 1. On February 2, 2015, the Court issued an Order and Judgment denying and dismissing that habeas petition without prejudice as an unauthorized, successive petition. (Id.; Docket Entry Nos. 14-15). On February 27, 2015, the Court denied Petitioner’s motion for relief from Judgment pursuant to Fed.R.Civ.P. 60(b)(6). (Id.; Docket Entry No. 18). On March 26, 2015, the Court denied Petitioner’s request for a Certificate of Appealability. (Id.; Docket Entry No. 21). On September 18, 2015, the Ninth Circuit Court of Appeals denied Petitioner’s request for a Certificate of Appealability. (Id.; Docket Entry No. 26).

         DISCUSSION

         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 ...