United States District Court, C.D. California
ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE
DISMISSED AS SUCCESSIVE
E. SCOTT, UNITED STATES MAGISTRATE JUDGE.
August 15, 2019, William Joe Long (“Petitioner”)
constructively filed a Petition for Writ of Habeas Corpus by
a Person in State Custody pursuant to 28 U.S.C. § 2254
(the “Petition”). (Dkt. 1.) As discussed more
fully below, the Court orders Petitioner to show cause why
the Petition should not be dismissed as successive.
Petition challenges Petitioner's 27-year determinate
sentence imposed in 2009 after Petitioner pled guilty to
manslaughter. (Dkt. 1 at 2.) Petitioner challenges his
sentence on the ground that he is entitled to early parole
pursuant to California's Proposition 57. (Id. at
5.) California's Proposition 57, approved by voters in
November 2016, expands eligibility for parole for certain
felons convicted of nonviolent crimes. See Travers v.
California, No. 17-cv-06126, 2018 U.S. Dist. LEXIS 18715
at *3-5, 2018 WL 707546 at *2-3 (N.D. Cal. Feb. 5, 2018).
October 2017, Petitioner filed a federal habeas petition in
this Court also challenging his 2009 manslaughter conviction
based on the grounds that: (1) it was “doubled”
improperly pursuant to California Penal Code §
1170.12(a)-(d); and (2) the trial court
“‘unlawfully' applied a (5) year prison
prior” which allegedly violated, among other
provisions, the “5th Amendment ‘Double
Jeopardy.'” (2:17-cv-07980-FMO-KES [“Long
I”], Dkt. 1 at 5-6.)
2018, the Court summarily dismissed the petition in Long
I, because Petitioner failed to show that it was timely.
(Id., Dkts. 11 [Report and Recommendation
(“R&R”)], 20 [Order Accepting R&R], 21
Petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), which provides in
pertinent part as follows:
(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 factfinder would ...