United States District Court, C.D. California, Western Division
ORDER OF DISMISSAL
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
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). 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. (Petition, attached “Statement of
the facts” at 2-7).
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).
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
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(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 ...