United States District Court, C.D. California
OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS
CORPUS (SUCCESSIVE PETITION)
O. CARTER UNITED STATES DISTRICT JUDGE
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
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.
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.
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
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.
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
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.)
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.)
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.