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Brown v. Pfeiffer

United States District Court, C.D. California

March 24, 2017

JAVONE LAMAR BROWN, Petitioner,
v.
CHRISTIAN PFEIFFER, Warden, Respondent.

          ORDER DISMISSING PETITION AS SUCCESSIVE

          KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE

         On March 21, 2017, Javone Lamar Brown (“Petitioner”) filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. (Dkt. 1.) Petitioner also consented to having a United States Magistrate Judge conduct all proceedings in this case. (Dkt. 2.) The Petition is the second habeas corpus petition that Petitioner has filed in this Court stemming from his 2010 state court conviction and sentence in Los Angeles County Superior Court case no. TA112805. See Brown v. Grounds, 2:14-cv-08936-DMG-KES.

         Under Rule 4 of the Rules Governing Section 2254 Cases in the United States district Courts, a habeas petition filed by a prisoner in state custody “must” be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court[.]” For the reasons set forth below, the Petition must be dismissed without prejudice as a second or successive petition pursuant to 28 U.S.C. § 2244(b).

         I. BACKGROUND

         A. State Court Proceedings[1]

         On November 12, 2010, Petitioner was convicted by a Los Angeles County Superior Court jury of two counts of murder with gun and gang enhancements.[2](Dkt. 1 at 2.) Petitioner was sentenced to imprisonment for life without the possibility of parole. (Id.)

         Petitioner appealed, arguing insufficiency of the evidence, vindictive prosecution, prosecutorial misconduct, trial court errors regarding the admission of certain evidence and improper comments during voir dire, and various sentencing errors, among other claims. People v. Miller, case no. B232167, 2014 WL 495806, at *7 (Cal.App. 2d, Feb. 7, 2014) (unpublished). On February 7, 2014, the California Court of Appeal denied these claims and affirmed Petitioner's conviction, but modified certain sentencing errors. (Id., at *39.) Petitioner then filed a petition for review in the California Supreme Court, which was denied without comment or citation to authority on May 21, 2014. People v. Miller, case no. S217118.

         As relevant here, Petitioner filed a state habeas petition in the California Court of Appeal on December 16, 2016, claiming that he had obtained new evidence demonstrating his actual innocence. (Dkt. 1 at 4, 27-28.) Petitioner alleged therein that the primary prosecution witness at trial, Deshawn Hayes, had recanted his testimony, casting significant doubt on his conviction. (Id. at 27-28.). On December 30, 2016, the Court of Appeal found that the recantation is not “new evidence, ” because Petitioner could have raised this claim as early as October 2015. In re Javone Lamar Brown, Case. No. B279542 (2016). Petitioner then raised the same claim in a habeas petition to the California Supreme Court on January 13, 2017. (Dkt. 1 at 3.) On March 1, 2017, the California Supreme Court denied Petitioner's habeas petition without comment or citation to authority. (Dkt. 1 at 25.)

         B. Prior Federal Habeas Petitions[3]

         On November 19, 2014, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2244 (“First Petition”), which was assigned case no. 2:14-cv-08936-DMG-KES. The First Petition challenged Petitioner's convictions in Los Angeles County Superior Court, case no. TA112805. The First Petition raised twelve claims arguing insufficiency of the evidence, vindictive prosecution, prosecutorial misconduct, trial court errors regarding the admission of certain evidence and improper comments during voir dire, and various sentencing errors, among other claims. (See 2:14-cv-08936-DMG-KES, Dkt. 30 at 17-19.)

         On September 4, 2015, the Magistrate Judge assigned to the case issued a Report and Recommendation recommending that the First Petition be dismissed. (Id. at Dkt. 30.) On September 28, 2015, Petitioner filed objections. (Id. at Dkt. 32.) On June 8, 2016, the Court adopted the Report and Recommendation and dismissed the First Petition with prejudice. (Id. at Dkt. 37.) The Court also declined to issue a certificate of appealability under 28 U.S.C. § 2253(c)(2). (Id., at Dkt. 39.)

         II. DISCUSSION

         The instant Petition raises an actual innocence claim based on new evidence. Petitioner offers evidence that Deshawn Hayes, a prosecution witness who testified at trial that Petitioner's co-defendant, Jeffrey McLeod, told him that McLeod and Petitioner robbed and killed the victims, has recanted his testimony. (Dkt. 1 at 12.) Petitioner attaches as exhibits a declaration from Deshawn Hayes in which he recants his testimony, and a declaration from private investigator Randy Candias detailing how Hayes's declaration was obtained. (Dkt. 1 at 30-35.) Petitioner contends that this new evidence supports his actual innocence claim, and is sufficient to overturn his conviction and sentence, or at a minimum entitles Petitioner to an evidentiary hearing on the matter. (Dkt. 1 at 17, 18.)

         The Petition now pending is governed by 28 U.S.C. § 2244(b), which ...


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