United States District Court, C.D. California
HONORABLE KENLY KIYA KATO United States Magistrate Judge
ORDER SUMMARILY DISMISSING ACTION WITHOUT
HONORABLE JAMES V. SELNA UNITED STATES DISTRICT JUDGE
19, 2019, Floyd Scott (“Petitioner”)
constructively filed a “Motion for Rule 60(b)
Hearing” which the Court construes as a Petition for
Writ of Habeas Corpus by a Person in State Custody
(“Petition”) pursuant to 28 U.S.C. § 2254
challenging his 2008 conviction. On August 7, 2019, the Court
issued an Order to Show Cause Why Petition Should Not Be
Summarily Dismissed As Second And Successive
(“OSC”). On August 19, 2019, Petitioner
constructively filed a response to the OSC. For the reasons
discussed below, the Court summarily DISMISSES this action
SUMMARY OF PROCEEDINGS
21, 1999, Petitioner was convicted of assault to commit rape,
forcible oral copulation, penetration by a foreign object,
and false imprisonment by violence in Los Angeles County
Superior Court. Scott v. Harrington, No. CV
11-5738-GAF (AJW), 2014 WL 3571732, at *1 (C.D. Cal. June 10,
2014), report and recommendation adopted, 2014 WL
3589828 (C.D. Cal. July 18, 2014). Petitioner was sentenced to
state prison for a term of 225 years to life. Id.
March 21, 2003, Petitioner filed a Petition for Writ of
Habeas Corpus by a Person in State Custody (“2003
Petition”) pursuant to 28 U.S.C. § 2254 in this
Court challenging his 1999 conviction. Scott v.
Lamarque, No. CV 03-2003-GAF (AJW), Dkt. 1. On December
19, 2006, Petitioner's 2003 Petition challenging his 1999
conviction was granted and he was ordered retried or released
within 90 days. Id. at Dkt. 42,
August 10, 2008, upon retrial, Petitioner was convicted of
one count of assault to commit rape, two counts of forcible
oral copulation, one count of penetration by a foreign
object, and one count of false imprisonment by violence.
Scott v. Asuncion, No. CV 16-2973-JVS (AJW), 2016 WL
3583837, at *1 (C.D. Cal. June 6, 2016), report and
recommendation adopted, 2016 WL 3607156 (C.D. Cal. June
29, 2016). The jury also found true the allegations that
Petitioner tied and bound the victim in the commission of the
offenses, had suffered prior felony convictions, and had
served a prison term without remaining free of custody for a
period of five years. Id. Petitioner was sentenced
to state prison for a term of 275 years to life. Id.
appealed his conviction to the California Courts of Appeal,
which affirmed the judgment in a reasoned decision on October
28, 2009. People v. Scott, No. B210946, 2009 WL
3450270, at *1 (Cal.Ct.App. Oct. 28, 2009).
then filed a petition for review in the California Supreme
Court, which was summarily denied on January 13, 2010.
California Courts, Appellate Courts Case Information, Docket,
updated Sept. 4, 2019 2:09 PM).
4, 2011, Petitioner constructively filed a habeas petition in
this Court (the “2011 Petition”) challenging his
2008 conviction and raising the following sixteen claims for
1. The admission of the victim's preliminary hearing
testimony violated Petitioner's right to confrontation.
2. The trial court abused its discretion by admitting
evidence of Petitioner's prior rapes.
3. Petitioner was denied due process by the admission of
evidence of other crimes for the purpose of inferring his