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Driscoll v. Gastelo

United States District Court, C.D. California

November 9, 2017

KEVIN DANIEL DRISCOLL, Petitioner,
v.
JOSIE GASTELO, Warden, Respondent.

          OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION)

          DAVID O. CARTER UNITED STATES DISTRICT JUDGE

         On October 24, 2017, Petitioner filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. He challenges a 1999 Los Angeles County Superior Court conviction and sentence for second degree murder with a gun enhancement. (Petition at 2.) Because he previously challenged the same state court judgment in a federal habeas action that was dismissed with prejudice and because he lacks Ninth Circuit authorization to file a successive petition, the Court does not have jurisdiction over the successive petition.

         Petitioner also filed, in connection with his current Petition, a motion pursuant to Fed.R.Civ.P. 60(b) for relief from judgment in his prior habeas action, Driscoll v. Yarborough, No. CV 02-3013-DOC (AN) (“Driscoll I”). The Clerk is directed to file the motion in Driscoll I.

         I.

         PROCEDURAL BACKGROUND

         Pursuant to Fed.R.Evid. 201, the Court takes judicial notice of the records in Petitioner's prior federal habeas corpus action in the Central District of California.

         In 1999, a Los Angeles County Superior Court jury convicted Petitioner of second degree murder. The jury also found true an enhancement allegation that, in committing the murder, Petitioner personally and intentionally discharged a firearm, causing great bodily injury and death. He was sentenced to prison for an aggregate term of 40 years to life. (Petition at 2; see Dkt. Nos. 66, 73 in Driscoll I.) Petitioner filed unsuccessful appeals and habeas actions in state court.

         On April 11, 2002, Petitioner filed a habeas petition in this Court. On December 29, 2005, the Court entered Judgment dismissing Driscoll I with prejudice and, on February 15, 2006, the Court denied a certificate of appealability. (Driscoll I, Dkt. Nos. 73, 74, 77.) The Ninth Circuit denied a certificate of appealability on August 30, 2007 in its case number 06-55273. (Dkt. No. 82.) The United States Supreme Court denied certiorari on March 31, 2008 in its case number 07-8996.

         On March 23, 2017, Petitioner filed an application in the Ninth Circuit for authorization to file a second or successive habeas petition in that court's case number 17-70835. According to the public docket, that application remains pending.

         The Petition for Writ of Habeas Corpus filed on October 24, 2017 in this Court contains two grounds for relief: (1) the prosecution failed to prove each element of the firearm enhancement beyond a reasonable doubt and, therefore, he is actually innocent of the enhancement in Cal. Penal Code § 12022.53; and (2) the same enhancement statute is unconstitutionally vague. (Petition at 5.)

         Petitioner contends his actual innocence exempts him from the one-year statute of limitations under 28 U.S.C. § 2244(b)(2)(B)(ii). (Id. at 5.)

         Petitioner also filed a motion pursuant to Fed.R.Civ.P. 60(b) for relief from judgment in Driscoll I. The Rule 60(b) motion raises new grounds for relief that were not contained in the Second Amended Petition in Driscoll I. Specifically, Petitioner argues, as he does in the successive petition, that the gun enhancement in Cal. Penal Code § 12022.53(d) is inapplicable to defendants who have not furthered or promoted a criminal street gang pursuant to Cal. Penal Code § 186.22(b) and, therefore, he is actually innocent of the gun enhancement.[1]

         I.

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