United States District Court, C.D. California
ORDER: DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
WITHOUT PREJUDICE; AND DENYING CERTIFICATE OF
APPEALABILITY
DOLLY
M. GEE UNITED STATES DISTRICT JUDGE.
On
March 3, 2016, Eric Brown (“Petitioner”), a
California state prisoner proceeding pro se, filed a
Petition for Writ of Habeas Corpus by a Person in State
Custody (the “Petition”) under 28 U.S.C. §
2254.[1] [Doc. # 1.]
Petitioner
challenges a 2005 state court conviction - and accompanying
16-year state prison sentence - for two counts of second
degree robbery (California Penal Code (“Penal
Code”) § 211) and one count of being a felon in
possession of a firearm in violation of Penal Code §
12021(a)(1). (Petition at 2.) However, as Petitioner
acknowledges, this Court denied a prior habeas petition
challenging the same conviction in 2014. See
Petition at 7; see also Eric LaQuince Brown v. California
Attorney General, et al., C.D. Cal. No. EDCV 13-2398-DMG
(VBK), at Doc. ## 1 (“2013 Petition”), 20
(“2014 Report and Recommendation”), 23 (Order
Accepting Report and Recommendation).
Rule 4
of the Rules Governing Section 2254 Cases in the United
States District Courts, 28 U.S.C. foll. § 2254
(“Habeas Rules”), requires a district court to
dismiss a petition without ordering a responsive pleading
where “it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief.” Habeas Rule 4. For the reasons set forth
below, the Petition must be, and is, DISMISSED as second or
successive, pursuant to 28 U.S.C. § 2244(b) and Rule 4.
I.
BACKGROUND
Petitioner
appealed his 2005 conviction in the California Court of
Appeal, which affirmed the judgment of the trial court on
January 19, 2007. 2014 Report and Recommendation at 3.
Petitioner did not file a petition for review in the
California Supreme Court, but in February 2008, began filing
habeas petitions in the state courts. Id. at 3-5.
According to the 2014 Report and Recommendation, on April 15,
2009 and February 20, 2013 the California Supreme Court
denied habeas petitions filed by Petitioner. Id. at
4-5.
On
December 31, 2013, well over six years after
Petitioner’s conviction became final, Petitioner filed
a Petition For Writ Of Habeas Corpus (“2013
Petition”) pursuant to 28 U.S.C. § 2254 in the
United States District Court for the Central District of
California. 2014 Report and Recommendation at 1. On November
24, 2014, United States District Judge Dolly M. Gee issued an
order dismissing the 2013 Petition with prejudice on the
grounds that the Petition was untimely and failed to present
a cognizable claim for relief. Petitioner appealed to the
Court of Appeals for the Ninth Circuit, which denied a
certificate of appealability on March 20, 2015.
The
instant Petition, like Petitioner’s 2013 Petition,
concerns Petitioner’s 2005 conviction. On April 4,
2016, Hon. Suzanne H. Segal, United States Magistrate Judge,
ordered Petitioner to show cause no later than April 18, 2016
why the Petition should not be dismissed as second and
successive. (Doc. # 3.] On May 31, 2016, six weeks after the
deadline for Petitioner’s response, the Court received
from Petitioner a document bearing two separate case numbers,
which was entitled “Petitioner’s Response to U.S.
Dist Courts Order To Show Cause & Second Notice of
Statute Lien Rule 60(b)(d).”[2] [See Doc. # 4
(errors in original).] Magistrate Judge Segal rejected that
document and ordered it returned to Petitioner because
“Petitioner submitted two documents for two separate
cases as part of a single filing. It is unclear what
Petitioner is filing and in which case.” (Id.)
On June 8, 2016, this case was assigned to Hon. Karen L.
Stevenson, United States Magistrate Judge. [Doc. # 5.]
Petitioner
has not filed a satisfactory response to the Court’s
April 4, 2016 order to show cause.[3] Accordingly, Petitioner has
failed to establish that the Court has jurisdiction to
consider the Petition.
II.
DISCUSSION
State
habeas petitioners generally may file only one federal habeas
petition challenging a particular state conviction and/or
sentence. See, e.g., 28 U.S.C. § 2244(b)(1)
(courts must dismiss a claim presented in a second or
successive petition when that claim was presented in a prior
petition) and § 2244(b)(2) (with several exceptions not
applicable here, courts must dismiss a claim presented in a
second or successive petition when that claim was not
presented in a prior petition). “A habeas petition is
second or successive . . . if it raises claims that were or
could have been adjudicated on the merits” in an
earlier Section 2254 petition. McNabb v. Yates, 576
F.3d 1028, 1029 (9th Cir. 2009); see also Gage v.
Chappell, 793 F.3d 1159, 1165 (9th Cir. 2015) (claims
for which the factual predicate existed at the time of the
first habeas petition qualify as second or successive)
(citations omitted).
Even
when Section 2244(b) provides a basis for pursuing a second
or successive Section 2254 habeas petition, state habeas
petitioners seeking relief in this district court must first
obtain authorization from the Ninth Circuit before filing any
such second or successive petition. 28 U.S.C. §
2244(b)(3). The Ninth Circuit “may authorize the filing
of the second or successive [petition] only if it presents a
claim not previously raised ...