United States District Court, C.D. California
Present: The Honorable KENLY KIYA KATO, UNITED STATES
(In Chambers) Order To Show Cause Why Petition Should Not Be
Summarily Dismissed As Second And Successive
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.
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. 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
6UlxbIyMuWz9TMCAgCg%3D%3D (last updated Oct. 21, 2019 9:46
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.
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
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.
September 30, 2019, Petitioner constructively filed the
instant Petition, challenging his 1989 convictions on the
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.
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 ...