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Larrimore v. Gastelo

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

October 9, 2019

NADONTE LARRIMORE, Petitioner,
v.
WARDEN GASTELO, Respondent.

          ORDER DISMISSING SUCCESSIVE PETITION WITHOUT PREJUDICE

          CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE

         I.

         BACKGROUND

         On September 25, 2019, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). In the Petition, petitioner challenges his 2003 conviction for two counts of first degree residential burglary (Cal. Penal Code §§ 459, 460(a)) by alleging a due process violation based on a recent Supreme Court decision. (See ECF No. 1 at 2, 5, 9-25).

         In 2006, petitioner filed a previous habeas petition in this Court (the “2006 Petition”). (See Case No. CV 06-1125-CJC (PLA), ECF No. 1). Petitioner in the 2006 Petition raised the following claims: (1) the evidence was insufficient to sustain the conviction on both burglary counts; (2) the trial court violated petitioner's constitutional rights by admitting preliminary hearing testimony; and (3) petitioner's conviction was based on uncorroborated accomplice testimony. (Id., ECF No. 34 at 5). On June 12, 2008, after considering petitioner's claims on the merits, the Court entered judgment dismissing the 2006 Petition with prejudice. (Id., ECF Nos. 34, 39, 40). The Court also granted a certificate of appealability on petitioner's claim regarding the admission of preliminary hearing testimony. (Id., ECF No. 44). On appeal, the Ninth Circuit affirmed the judgment. (Id., ECF No. 52).

         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 2006 Petition, which challenged his 2003 conviction, was dismissed with prejudice on June 12, 2008. (See Case No. CV 06-1125-CJC (PLA), ECF Nos. 34, 39, 40). In the instant Petition, which again attacks petitioner's 2003 conviction, petitioner seeks habeas relief based on the Supreme Court's decision in Sessions v. Dimaya, __ __U.S. __, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), in which the Court held that the definition of “crime of violence, ” as defined in 18 U.S.C. § 16(b), was impermissibly vague. In Dimaya, the respondent, a native of the Philippines, was convicted of first-degree burglary under California law. During removal proceedings, it was found that the respondent was deportable because first-degree burglary qualified as a “crime of violence” under 18 U.S.C. § 16(b).[1] On appeal, the Ninth Circuit held that the language of § 16(b) was unconstitutionally vague, and the Dimaya Court affirmed.[2]In the instant Petition, it appears that petitioner relies on the Dimaya holding to argue that his first degree burglary conviction in 2003 was wrongly categorized under California sentencing law as a “violent” felony, and should have been categorized only as a “serious” felony.[3] (ECF No. 1 at 10-14).

         In light of the earlier dismissal of the 2006 Petition, the Court concludes that the instant Petition is successive. Even if petitioner could satisfy any of the exceptions listed in 28 U.S.C. § 2244(b)(2)(A) or (B), [4] he is still required to request and obtain authorization from the Ninth Circuit before filing a successive petition. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 152-53, 127 S.Ct. 793, 798, 166 L.Ed.2d 628 (2007) (AEDPA requires petitioner to receive authorization from the court of appeals before filing a second habeas petition). Because there is no indication that petitioner has obtained such authorization from the Ninth Circuit, the Court is without jurisdiction to entertain the instant Petition. See Burton, 549 U.S. at 153; Cooper, 274 ...


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