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Tapia v. United States District Court

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

March 24, 2017

GERARDO LUCIANO TAPIA, Petitioner,
v.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA, Respondent.

          ORDER OF DISMISSAL

          OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         On March 21, 2017, Gerardo Luciano Tapia (“Petitioner”), a California state prisoner proceeding pro se, filed a “Petition for Writ of Mandate/Prohibition” (“Petition”) (Docket Entry No. 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”). Petitioner challenges his 2010 convictions for seven counts of committing a lewd and lascivious act on a child under age fourteen by force, violence, duress, menace or fear and one count of attempted aggravated sexual assault of a child under age fourteen, in Riverside County Superior Court (Case No. RIF150883).[1] The Petition appears to allege the following grounds for federal habeas relief: (1) Petitioner's convictions were based on the lies by Petitioner's stepdaughter, a minor; (2) Petitioner received ineffective assistance of counsel based on trial counsel's failure to call Petitioner's wife to testify; (3) The trial court committed judicial misconduct in its response to the jurors' question about what happens if the jurors are not able to reach a verdict; (4) Petitioner is actually or factually innocent; (5) The polygraph evidence presented at trial was fabricated; and (6) Petitioner received ineffective assistance of counsel based on his trial counsel's failure to object to the trial court's judidicial misconduct in its response to the jurors' question about what happens if the jurors are not able to reach a verdict.[2] (Petition, attached “Statement of the facts” at 2-7).[3]

         On August 15, 2014, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody by a Person in State Custody pursuant to 28 U.S.C. § 2254, in which he challenged the same 2010 convictions (“prior habeas action”). See Gerardo Luciano Tapia v. Kim Holland, Warden, Case No. EDCV 14-01692-ODW (RNB)(Docket Entry No. 1). On April 21, 2015, the Court issued an Order and Judgment denying that habeas petition and dismissing the action with prejudice, in accordance with the findings and recommendations of the assigned Magistrate Judge. (Id.; Docket Entry Nos. 25-26). On the same date, the Court denied Petitioner a certificate of appealability. (Id.; Docket Entry No. 24).

         II. 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 authorizing the district court to consider the application.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a ...

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