United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR ORDER GRANTING
RESPONDENT'S MOTION TO DISMISS [ECF, 10]
Barbara L. Major United States Magistrate Judqe
Report and Recommendation is submitted to United States
District Judge Michael M. Anello pursuant to 28 U.S.C. §
636(b) and Civil Local Rules 72.1(d) and HC.2 of the United
States District Court for the Southern District of
California. On October 16, 2016, Petitioner Luis Tapia, a
state prisoner proceeding pro se commenced these
habeas corpus proceedings pursuant to 28 U.S.C. § 2254.
ECF No. 1 (“Pet.”). Petitioner challenges his
conviction for murder in the second degree with the use of a
firearm. Id. at 1-2.
October 26, 2016, the Court denied Petitioner's motion to
proceed in forma pauperis [see ECF No. 3],
dismissed the Petition without prejudice, and informed
Petitioner that he must provide the Court with the $5 filing
fee or adequate proof that he could not pay the $5.00 filing
fee in order to have the case reopened. ECF No. 4. On
November 28, 2016, Petitioner paid the $5 filing fee. ECF No.
5. On December 5, 2016, the Court reopened the case and
issued a briefing schedule requiring Respondent to file a
motion to dismiss by February 10, 2017, and Petitioner to
file an opposition by March 12, 2017. ECF No. 8. Currently
before the Court is Respondent's Motion to Dismiss
Petition for Writ of Habeas Corpus because it is a second and
successive Petition and because the Petition is untimely.
ECF. No. 10 (“MTD”). On March 8, 2017, Petitioner
constructively filed an opposition. ECF 12
(“Oppo.”). For the reasons set forth below, the
Court RECOMMENDS that Respondent's
motion to dismiss be GRANTED.
AND PROCEDURAL BACKGROUND
24, 1982, an information was filed charging Petitioner with
one count of murder and with having personally used a
firearm. Lodgment 4. The jury found Petitioner guilty and
convicted him of second degree murder. Id.; see
also Lodgment 1 at 4. The judgment was reversed on
appeal for failing to instruct the jury on voluntary
manslaughter under a heat of passion theory. Id.
Petitioner was retried and on November 29, 1989, the jury
again found him guilty of second degree murder and that he
did personally use a firearm. Id.; see also
Lodgment 2 at 52. On December 22, 1989, Petitioner was
sentenced to a total term of seventeen years to life.
Lodgment 4 at 1; see also Lodgment 3 at 2.
January 30, 1990, Petitioner filed a timely notice of appeal
to the California Court of Appeal alleging that the court
erred by “(1) failing to instruct the jury on the
"law of the case" set forth in our prior opinion,
(2) refusing to grant a mistrial based on destruction of
evidence, and allowing testimony relating to tests performed
on the destroyed evidence, (3) admitting a photograph of the
victim taken at the scene, (4) admitting the testimony of a
witness that Tapia had threatened him at a prior hearing, and
(5) denying Tapia's motion for new trial on the grounds
the verdict was against the weight of the evidence.”
Lodgment 1 at 4. On April 12, 1991, the Court of Appeal,
Fourth Appellate District, Division One, affirmed the
judgment. Id. There is no indication in the record
that Petitioner filed a petition for review in the California
Supreme Court. See Lodgments; see also MTD
9, 2009, the Board of Parole Hearings (“BPH”)
held a parole consideration hearing and concluded that
Petitioner was not suitable for parole. Lodgment 6 at 1. The
denial was for five years. Id. Petitioner then filed
petitions for writ of habeas corpus challenging the BPH's
decision which were denied by the superior court on May 26,
2010 and by the court of appeal on October 15, 2010. The BPH
held another parole consideration hearing on July 1, 2014 and
again found that Petitioner was not suitable for parole.
Id. The denial was for three years. Id. On
August 14, 2015, Petitioner filed a habeas petition in the
California Superior Court, County of San Diego, challenging
the BPH's July 1, 2014 decision which was denied on
September 24, 2015. Id. at 2.
21, 2016, Petitioner filed another habeas petition in the
California Superior Court, County of San Diego, contending
that he was deprived of due process because he was convicted
under an unconstitutionally vague statute and because he was
deprived of the legislative intent of Penal Code section
1168(b) which rendered Penal Code Sections 3041(a) and (b)
unconstitutionally vague and violated ex post facto laws.
Lodgment 5 at 3-4. On June 17, 2016, the California Superior
Court denied Petitioner's habeas petition as a successive
petition and because Petitioner failed to state a prima facie
claim for habeas relief. Lodgment 6.
8, 2016, Petitioner filed another petition for writ of habeas
corpus in the California Court of Appeal which raised the
same claims as the May 21, 2016 petition. Lodgment 7. On July
12, 2016, the California Court of Appeal denied the petition
on the merits finding that Petitioner provided “no
documentary evidence that he was convicted under the
felony-murder theory of second degree murder” and that
without any evidence that Petitioner “was convicted
under the theory he now claims is unconstitutional, he fails
to state a prima facie case for relief.” Lodgment 8.
The Court also found that Petitioner had previously raised
his ex post facto claims and that “absent a change in
the applicable law or the facts, the court will not consider
repeated applications for habeas corpus presenting claims
previously rejected.” Id.
August 1, 2016, Petitioner filed a petition for writ of
habeas corpus in the California Supreme Court seeking the
same relief. Lodgment 9. The petition was summarily denied on
October 12, 2016. Lodgment 10.
constructively filed the instant petition on October 16,
2016. Pet. Petitioner argues that (1) the structure of
California's second degree murder statute is
unconstitutionally vague under Johnson v. United
States, 135 S.Ct. 2551 (2015) and that (2) the BPH and
California courts have arbitrarily applied Penal Code Section
3041(b) rendering it void for vagueness under
Johnson. Pet. at 6-7.
28, United States Code, § 2254(a), sets forth the
following scope of review for federal habeas corpus claim:
The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or
treaties of the United States.
28 U.S.C. § 2254(a) (2006 & Supp. 2016).
contends that the Petition should be dismissed as untimely
and as a second and successive petition under 28 U.S.C.
§§2244(b) and (d). MTD at 9-16.
The AEDPA Statute of Limitations
AEDPA imposes a one-year statute of limitations on federal
petitions for writ of habeas corpus filed by state prisoners.
28 U.S.C. § 2244(d) (2006 & Supp. 2016). Section
2244(d)'s one-year limitations period applies to all
habeas petitions filed by persons “in custody pursuant
to the judgment of a State ...