United States District Court, C.D. California
ORDER SUMMARILY DISMISSING SUCCESSIVE PETITION FOR
WRIT OF HABEAS CORPUS FOR LACK OF JURISDICTION AND DENYING
CERTIFICATE OF APPEALABILITY
HONORABLE DALE S. FISCHER, UNITED STATES DISTRICT JUDGE.
1, 2019, the Court received a Petition for Writ of Habeas
Corpus by a Person in State Custody (“Petition”)
pursuant to 28 U.S.C. § 2254 from Marco Antonio Saucedo
(“Petitioner”). Petitioner seeks habeas relief
from his current state custody, which arises from his 2013
conviction in Riverside County Superior Court for vehicular
manslaughter while intoxicated. Pet. at 1, Dkt. No. 1. The
Petition raises a single ground for relief, namely that the
trial court erred in instructing the jury on the elements of
manslaughter. Pet. at 6.
records of this Court establish that Petitioner has filed a
previous habeas action concerning his 2013 conviction and
sentence. See Saucedo v. Director of CDCR, No.
5:16-cv-01873-DSF-AFM (C.D. Cal. Sept. 1, 2016). In the prior
case, the Court denied with prejudice the operative petition.
See Order Accepting Findings and Recommendations of
United States Magistrate Judge, Saucedo v. Hatton,
No. 5:16-cv-01873-DSF-AFM (C.D. Cal. Sept. 8, 2017), Dkt.
16, 2019, Respondent filed a motion to dismiss the Petition
as successive (“Motion”). Dkt. No. 11. Petitioner
opposes the Motion on the ground that his lack of
understanding of the English language prevented him from
asserting the new ground raised in the Petition. Opp’n,
Dkt. No. 15 at 2.
review of the Petition demonstrates that Petitioner again
seeks federal habeas relief concerning the same 2013
conviction and sentence at issue in Petitioner’s 2016
habeas action. Neither the Petition itself nor the records of
the Ninth Circuit Court of Appeals establish that Petitioner
has authorization to bring a successive petition in this
United States Supreme Court has explained:
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) established a stringent set of procedures that a
prisoner “in custody pursuant to the judgment of a
State court,” 28 U.S.C. § 2254(a), must follow if
he wishes to file a “second or successive” habeas
corpus application challenging that custody, §
2244(b)(1). In pertinent part, before filing the 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.” §
2244(b)(3)(A). A three-judge panel of the court of appeals
may authorize the filing of the second or successive
application only if it presents a claim not previously raised
that satisfies one of the two grounds articulated in §
2244(b)(2). § 2244(b)(3)(C); Gonzalez v.
Crosby, 545 U.S. 524, 529-530, 125 S.Ct. 2641, 162
L.Ed.2d 480 (2005); see also Felker v. Turpin, 518
U.S. 651, 656-657, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827
Burton v. Stewart, 549 U.S. 147, 152-53, 127 S.Ct.
793, 166 L.Ed.2d 628 (2007).
Court finds that the Petition is clearly a “second or
successive” habeas petition. Moreover, the Petition and
records of the Ninth Circuit establish that Petitioner has
not been granted authorization by the Ninth Circuit to file a
successive petition to raise his new claim.
Opposition to Respondent’s Motion, Petitioner contends
that he is entitled to a “gateway privilege as codified
in [28 U.S.C.] § 2244(b)(2)(A) and (B)” because he
is unable to speak, read, or write the English language.
Id. at 1-2. A petitioner may overcome the procedural
hurdle to a successive petition if he makes a proper showing
of actual innocence. Schlup v. Delo, 513 U.S. 298,
320-21, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (“[A]
habeas court must adjudicate even a successive habeas claim
when required to do so by the ‘ends of
justice.’”) (citations omitted); McQuiggins
v. Perkins, 569 U.S. 383, 386, 133 S.Ct. 1924, 185
L.Ed.2d 1019 (2013) (“We hold that actual innocence, if
proved, serves as a gateway through which a petitioner may
pass” through a procedural hurdle).
the actual innocence exception to the filing of a successive
petition, a petitioner must demonstrate that “more
likely than not, in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond
a reasonable doubt.’” McQuiggins, 569
U.S. at 386. Here, Petitioner is asserting that limited
English language skills prevented him from timely raising his
claim of jury instruction error. Without addressing the
merits of Petitioner’s allegations regarding lack of
language skills, the Court finds that the Petition raises a
claim of legal error, not factual innocence. See Bousley
v. United States, 523 U.S. 614, 623 (1998)
(“‘Actual innocence’ means factual
innocence, not mere legal insufficiency.”); Marrero
v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) (same).
Accordingly, it does not appear that the actual innocence
exception to filing a successive petition would apply here,
although this is a determination for the Ninth Circuit to
Petitioner has not obtained authorization to file the instant
Petition, the Court finds that it lacks jurisdiction. See
Burton, 549 U.S. at 152-53. Therefore, the reference to
the Magistrate Judge is vacated, and the Petition is
dismissed for lack of jurisdiction. The Clerk is directed to
enter judgment dismissing the ...