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Long v. Jaime

United States District Court, C.D. California

September 4, 2019

WILLIAM JOE LONG, Petitioner,
v.
GEORGE JAIME, Warden, Respondent.

          ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED AS SUCCESSIVE

          KAREN E. SCOTT, UNITED STATES MAGISTRATE JUDGE.

         On 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.

         I. BACKGROUND

         The 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).

         In 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.)

         In June 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 [Judgment].)

         II. DISCUSSION

         A. Legal Standard.

         The 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 unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(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 ...

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