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Johnson v. People

United States District Court, C.D. California, Western Division

September 10, 2019

AARON JOHNSON, Petitioner,
v.
THE PEOPLE OF CALIFORNIA, Respondent.

          ORDER DISMISSING SUCCESSIVE PETITION WITHOUT PREJUDICE

          HONORABLE PERCY ANDERSON UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         On August 29, 2019, petitioner filed a Petition for Writ of Habeas Corpus by a Person in 1 State Custody under 28 U.S.C. § 2254 (the “Petition”). In the Petition, petitioner challenges his 2 1993 conviction for first degree murder, alleging that he is innocent based on evidence that had 3 been concealed by the prosecution and police and therefore was never presented at his trial. (See ECF No. 1 at 17-43).

         This is the seventh federal petition petitioner has filed in this Court.[1] Petitioner's first federal petition for writ of habeas corpus challenged his 1993 conviction based on the following claims: ineffective assistance of trial and appellate counsel, unlawful search and seizure, insufficient evidence, and jury misconduct. The first petition was dismissed without prejudice on June 6, 1996, for failure to exhaust state court remedies. (See Case No. CV 96-3868-DT (CT), ECF No. 4; Case No. 00-4374-RSWL (CT), ECF No. 3 at 2). Petitioner's second federal petition, raising the same grounds and again challenging his 1993 conviction, was dismissed without prejudice on June 25, 1997, for failure to exhaust state court remedies. (See Case No. CV 97-4416-RAP (CT), ECF No. 4). After the California Supreme Court's denial of petitioner's state habeas petition on December 23, 1997 (see Case No. CV 00-4374-RSWL (CT), ECF No. 3 at 2), petitioner filed his third federal petition, again raising the same grounds he had raised in his previous federal habeas petitions. (See id. at 3). The district judge dismissed the third federal habeas petition with prejudice as time barred on August 27, 1998. (See Case No. CV 98-0989-DT (JG), ECF Nos. 12, 15, 16).

         Petitioner's subsequent federal petitions were each dismissed without prejudice as successive. In particular, his fourth federal petition, alleging that he was “denied meaningful access to the courts because the California courts denied his requests for free copies of the clerk's and reporter's transcripts, ” was dismissed on May 2, 2000. (See Case No. CV 00-4374-RSWL (CT), ECF No. 3 at 3). His fifth federal petition, in which petitioner again challenged his 1993 conviction by raising claims of ineffective assistance of counsel, unlawful seizure, insufficiency of the evidence, and jury misconduct, was dismissed on August 3, 2000. (See Case No. CV 00-7869-DT (CT), ECF Nos. 5, 6). His sixth federal petition, which was filed in 2014 and challenged his 1993 conviction based on claims of ineffective assistance of counsel and that the trial court refused to allow petitioner the opportunity to present newly discovered evidence, was dismissed on August 15, 2014. (See Case No. 14-4164-RT (PLA), ECF No. 5).

         II. DISCUSSION

         A federal habeas petition is successive if it raises claims that were or could have been adjudicated on the merits in a previous petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that a claim presented in a second or successive federal habeas petition that was not presented in a prior petition 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 have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2)(A), (B). Furthermore, “[b]efore 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.” 28 U.S.C. § 2244(b)(3)(A).

         As set forth above, petitioner's third federal petition challenging his 1993 conviction was dismissed with prejudice as time barred on August 27, 1998. (See Case No. CV 98-0989-DT (JG), ECF Nos. 12, 15, 16).

         As a dismissal of a prior petition for untimeliness creates a “permanent and incurable” bar to federal habeas review, the Ninth Circuit has held that the “dismissal of a section 2254 habeas petition for failure to comply with the statute of limitations renders subsequent petitions second or successive for purposes of the AEDPA[.]” McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (citation omitted); see also Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005) (dismissal of an earlier petition with prejudice because of a procedural default constitutes a disposition on the merits and renders a subsequent petition second or successive for purposes of 28 U.S.C. § 2244(b)). Accordingly, petitioner's fourth, fifth, and sixth federal petitions -- each of which raised claims attacking his 1993 conviction -- were dismissed as successive.

         In the instant Petition, petitioner challenges the same conviction that he challenged in each of his previous federal petitions, setting forth the following grounds for relief: (1) he recently discovered that exculpatory evidence -- consisting of a mobile phone, pager, and alibi statement --was concealed by the prosecution and police detectives; (2) the prosecution and police failed to preserve the exculpatory evidence; and (3) petitioner was subjected to an illegal search and seizure. (ECF No. 1 at 33-45). Petitioner further alleges that he is permitted to bring his “new evidence” claims pursuant to California Penal Code § 1473(b)(3), which was amended in 2017 to add that a state habeas petition “may be prosecuted for, but not limited to, the following reasons: . . . [¶] New evidence exists that is credible, ...


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