United States District Court, C.D. California
DIAMOND J. JONES, Petitioner,
v.
X. CANO, Warden, Respondent.
ORDER DISMISSING SUCCESSIVE HABEAS ACTION
HON.
JAMES V. SELNA UNITED STATES DISTRICT JUDGE.
The
Court dismisses this action pursuant to the successive habeas
petition rule under 28 U.S.C. § 2244.
* * *
Petitioner
is currently serving a term of 31 years to life in state
prison based on his 2005 convictions for receiving stolen
property and conspiracy to commit robbery.
This is
Petitioner’s second habeas action in federal court
challenging those convictions. In the first action, this
Court denied habeas relief on six grounds arising from his
original conviction. (Jones v. Harrington, CV
09-7276 JVS (OP) (C.D. Cal.).) Petitioner did not seek
appellate review of that decision.
In his
current habeas action, Petitioner appears to raise the same
claims as in his previous federal case. Attached to the
federal form petition are the state appellate decision from
his direct appeal, the supreme court petition for review, and
the federal petition that he filed in 2009. Petitioner made a
slight modification to his old state petition to include a
citation to a 2015 state court decision regarding a state
sentencing enhancement. (Docket # 1 at 88.) However,
Petitioner asserts no new federal constitutional claim in his
petition. Notably, the petition and its attachments do not
raise any cognizable constitutional challenge to
Petitioner’s sentence. (Docket # 1 at 5-6, 34-35.)
The
current petition was not accompanied by a certificate from
the Ninth Circuit authorizing a successive habeas action
pursuant to 28 U.S.C. § 2244(b). Magistrate Judge Wilner
screened Petitioner’s action and directed Petitioner to
file a statement explaining why the action was properly filed
under the successive petition rule. (Docket # 3.) Petitioner
failed to file a timely response. Instead, he submitted a
cursory request to stay the federal action based on the
pendency of a habeas proceeding in the state courts. (Docket
# 7.)
Judge
Wilner issued another order requiring Petitioner to show
cause why the action should not be dismissed as successive
and for failing to respond to the Court’s original
order. (Docket # 8.) Petitioner submitted a brief memorandum
in which he claimed that his state appellate lawyer failed to
properly address issues regarding his sentence. (Docket # 9
at 1-2.) However, Petitioner failed to address the question
of the successive nature of his current habeas action.
* * *
Under
federal law, a state prisoner is generally required to
present all constitutional challenges to a state conviction
in a single federal action. A habeas petition is second or
successive - and subject to dismissal under 28 U.S.C. §
2244(b) - when the petition “raises claims that were or
could have been adjudicated on the merits” in the first
action. McNabb v. Yates, 576 F.3d 1028, 1029 (9th
Cir. 2009). A prisoner must obtain authorization from the
Court of Appeals to pursue such a successive habeas petition
before the new petition may be filed in district
court. 28 U.S.C. § 2244(b)(3); Burton v.
Stewart, 549 U.S. 147 (2007) (dismissing successive
petition for failure to obtain authorization from court of
appeals).
The
current petition alleges the same constitutional claims that
Petitioner presented to this Court in 2009. The Court denied
habeas relief in that action. Petitioner offers no legitimate
basis for the Court to revisit that decision. Additionally,
Petitioner failed to obtain permission from the federal
appellate court to bring the present habeas action. As a
result, the current petition is subject to dismissal as
successive. See 28 U.S.C. § 2244(b);
Burton, 549 U.S. 147; McNabb, 576 F.3d at
1029.
To the
extent that Petitioner wishes to assert a claim that he did
not pursue in his original habeas action (challenge to
sentence imposed), he failed to plead that claim in his new
petition. He also faces a considerable hurdle under the
federal one-year limitations period - which likely expired
long ago - to assert such a new challenge. U.S.C. §
2244(d). Moreover, Petitioner offers no legitimate reason,
evidence, or analysis to support his contention that this
Court should stay the action (Docket # 7) based on ongoing
state proceedings. Rhines v. Weber, 544 U.S. 269
(2005).
* * *
The
current action is successive and subject to dismissal. The
Court concludes that the matter must be DISMISSED without
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