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Klemp v. Sullivan

United States District Court, C.D. California

May 9, 2018

Cody W. Klemp, Sr.
v.
J. William Sullivan

          PRESENT: HONORABLE SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE

          CIVIL MINUTES - GENERAL

         PROCEEDINGS: (IN CHAMBERS)

         On April 9, 2018, [1] Cody W. Klemp, Sr., a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254, challenging his 1994 sentence. (Dkt. No. 1). The Petition appears to be successive and untimely.

         Successiveness

          The Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to the instant Petition because Petitioner filed it after AEDPA's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA prohibits a second or successive petition absent permission by the appropriate court of appeals. 28 U.S.C. § 2244(b)(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.”); see also Burton v. Stewart, 549 U.S. 147, 152 (2007) (per curiam) (AEDPA states that “before filing [a second or successive habeas] application in the district court, a prisoner ‘shall move in the appropriate court of appeals for an order authorizing the district court to consider the application'”) (quoting 28 U.S.C. § 2244(b)(3)(A)); Tyler v. Cain, 533 U.S. 656, 661 (2001) (“AEDPA greatly restricts the power of federal courts to award relief to state prisoners who file second or successive habeas corpus applications.”). Thus, “[i]f [a] prisoner asserts a claim that he has already presented in a previous federal habeas petition, the claim must be dismissed in all cases. And if the prisoner asserts a claim that was not presented in a previous petition, the claim must be dismissed unless it falls within one of two narrow exceptions.” Tyler, 533 U.S. at 661 (emphasis in original) (citation omitted).[2]

         The instant Petition challenges the same 1994 criminal judgment that Petitioner previously challenged in multiple petitions for writ of habeas corpus in the United States District Court for the Central District of California. For example, Petitioner filed a petition on October 8, 1997, which the District Court denied for untimeliness on May 15, 2001. See Klemp v. Prunty, EDCV 97-0335-RT (Mc) (Dkt. Nos. 1, 41, 44, 45). Petitioner appealed to the Ninth Circuit, which affirmed the judgment on May 22, 2003. See Klemp v. Prunty, 67 Fed.Appx. 397 (9th Cir. 2003). On August 10, 2006, Petitioner challenged his 1994 state conviction by filing another federal habeas petition in the Central District of California, which the court denied as successive on April 3, 2007. See Klemp v. Adams, EDCV 06-0861-JSL (SS) (Dkt. Nos. 1, 18, 20, 21). He filed yet another habeas petition in the same court on March 24, 2010, which the court denied for untimeliness on May 18, 2010. See Klemp v. Gonzalez, EDCV 10-0434-JSL (SS) (Dkt. Nos. 1, 4, 7, 8).

         Petitioner must therefore obtain permission from the Ninth Circuit before this Court can adjudicate his challenge to his 1994 sentence. 28 U.S.C. § 2244(b)(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.”). Indeed, even if Petitioner qualifies for an exception to AEDPA's bar on claims raised in successive petitions, he must still receive permission from the Ninth Circuit before filing a petition in this Court. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (“Even if a petitioner can demonstrate that he qualifies for one of these exceptions, he must seek authorization from the court of appeals before filing his new petition with the district court.”). Based on the Court's review of the docket, Petitioner has not requested or received permission from the Ninth Circuit to file the Petition. Therefore, the Court lacks jurisdiction to adjudicate Petitioner's habeas challenge to his 1994 sentence. See Burton, 549 U.S. at 157 (because “Burton neither sought nor received authorization from the Court of Appeals before filing his [successive] petition, . . . the District Court was without jurisdiction to entertain it”).

         Untimeliness

         AEDPA also imposes a specific time limit on the filing of federal habeas petitions. See Rhines v. Weber, 544 U.S. 269, 274 (2005). By creating a limitations period, Congress intended “to reduce delays in the execution of state and federal criminal sentences.” Woodford v. Garceau, 538 U.S. 202, 206 (2003). Under 28 U.S.C. § 2244(d)(1), as amended, state prisoners have only one year in which to file their federal habeas petitions. The one-year limitations period prescribed by 28 U.S.C. § 2244(d)(1) begins to run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D). A petitioner ordinarily has one year from the date that his conviction becomes final to file a federal habeas petition. 28 U.S.C. § 2244(d)(1)(A). A case becomes final with “the conclusion of direct review or ...


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