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