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Mello v. Montgomery

United States District Court, C.D. California

October 21, 2019

William Mello
v.
W. L. Montgomery, Warden

          Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE

          CIVIL MINUTES-GENERAL

         Proceedings: (In Chambers) Order To Show Cause Why Petition Should Not Be Summarily Dismissed As Second And Successive

         I. INTRODUCTION

         On September 30, 2019, William Mello (“Petitioner”) constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254 challenging his 1989 convictions. The Petition appears subject to dismissal because it is second and successive. The Court will not make a final determination regarding whether the Petition should be dismissed, however, without giving Petitioner an opportunity to address this issue.

         II. PROCEDURAL HISTORY

         On November 9, 1989, Petitioner was convicted of first-degree murder, burglary, and robbery after a jury trial in Riverside County Superior Court. Pet., dkt. 1 at 2.[1] Petitioner was sentenced to state prison for a term of life without the possibility of parole. Id.; Pet., dkt. 1-6 at 6-7. Petitioner appealed his convictions to the California Court of Appeal, which affirmed the judgment in a reasoned decision on July 12, 1991. California Courts, Appellate Courts Case Information, Docket, https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=42&docid=640855&docno=E007750&requesttoken=NiIwLSIkTkg%2FW1BJSCNNUEtIQFg 6UlxbIyMuWz9TMCAgCg%3D%3D (last updated Oct. 21, 2019 9:46 AM).[2] Petitioner then filed a petition for review in the California Supreme Court, which was denied on October 3, 1991. Pet., Dkt. 1-6 at 15.

         In 1992, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“1992 Petition”) in this Court challenging his 1989 conviction. See Pet. Dkt. 1-6 at 17-19; see also Mello v. Marshall, 52 F.3d 334 (9th Cir. 1995). In the 1992 Petition, Petitioner argued his accomplice's appearance at Petitioner's trial in prison clothing and shackles denied him a fair trial. Id. The Court denied the 1992 Petition on the merits. Id.

         Petitioner appealed the denial of the 1992 Petition to the Ninth Circuit. Id. On April 7, 1995, the Ninth Circuit affirmed the denial of the 1992 Petition. Id.

         On September 30, 2019, Petitioner constructively filed the instant Petition, challenging his 1989 convictions on the following grounds:

1. The evidence is insufficient to support the jury's special circumstances findings and Petitioner's consequent LWOP sentence in light of new California case law regarding the “felony murder rule”, Pet., dkt. 1 at 5, 14-23.
2. “§ 1170.95 Petition for Sentencing Recall” pursuant to SB-1437, id. at 5, 23-25.
3. “Double Jeoprody [sic]; due process; fraud; and Jurisdiction”, id. at 6, 28-30.

         III. DISCUSSION

         Habeas petitioners generally may file only one habeas petition challenging their conviction or sentence. See 28 U.S.C. § 2244(b)(1). Hence, if a prior petition raised a claim that was adjudicated on the merits, a petitioner must “move in the appropriate court of appeals for an order authorizing the district court to consider the [second or successive petition].” Id. § 2244(b)(3)(A); McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); Goodrum v. Busby, 824 F.3d 1188, 1194 (9th Cir. 2016) (“As a general principle, . . . a petition will not be deemed second or successive unless, at a minimum, an earlier-filed petition has been finally adjudicated.”). Absent proper authorization from the court of appeals, district courts lack jurisdiction to consider second or successive petitions and must dismiss such petitions without prejudice to refiling if the petitioner obtains the necessary authorization. Burton v. Stewart, 549 U.S. 147, 152-53, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007); Cooper v. Calderon, 274 ...


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