United States District Court, C.D. California
Kenneth W. Mills
CA Dept. of Corrections and Rehabilitation
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 26, 2019, Kenneth W. Mills
(“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 conviction for mayhem and assault. 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
STATE COURT PROCEEDINGS
was convicted of mayhem and assault in Los Angeles County
Superior Court arising out of an incident on March 3, 2005
while he was a patient at Metropolitan State Hospital in
Norwalk, California. See People v. Mills, No.
B247127, 2014 WL 3509975, at *1 (Cal.Ct.App. July 16,
2014). Petitioner was sentenced to a term of
twenty-one years in state prison. Id. On July 16,
2014, the California Court of Appeal affirmed the conviction.
Id. The court noted “This case is the
appellant's third trial on these allegations.
Appellant's first trial resulted in a hung jury.
Appellant was found guilty in the second trial but the
convictions were reversed on appeal, and the trial court
directed to hold a competency hearing (No. B193456).”
Id. Petitioner does not appear to have filed a
petition for review with the California Supreme Court.
FEDERAL HABEAS PROCEEDINGS
April 17, 2017, Petitioner constructively filed a habeas petition
in the Eastern District of California, No.
2:17-cv-873-JAM-EFB (“First Petition”). Mills
v. California Department of Corrections and
Rehabilitation, CV 17-6748-CBM (KK), Dkt. 1. The First
Petition challenged Petitioner's conviction for mayhem
and assault in Los Angeles County Superior Court based on the
denial of counsel at a competency hearing. Id. at
Dkt. 23. While the relief sought was not entirely clear from
the face of the First Petition, Petitioner argued he was
“illegally imprison[ed]”. Therefore, on September
12, 2017, after numerous opportunities to clarify the relief
sought, the First Petition was construed as a habeas
petition, transferred to this Court, and assigned case number
CV 17-6748-CBM (KK). Id. at dkt. 25.
October 18, 2017, Petitioner filed a habeas petition in this
Court, which received case number CV 17-7901-CBM (KK).
Mills v. California Department of Corrections, CV
17-7901-CBM (KK), dkt. 1. This petition also challenged
Petitioner's conviction for mayhem and assault in Los
Angeles County Superior Court based on the denial of counsel
at a competency hearing. Id. Petitioner again argued
he was “illegally imprison[ed]”. Id.
December 4, 2017, the First Petition and the petition in case
number CV 17-7901 (collectively, the “2017
Petitions”) were consolidated and dismissed with
prejudice as untimely. See Mills v. California Department
of Corrections and Rehabilitation, CV 17-6748-CBM (KK),
dkts. 36, 37, 38; see also Mills v. California Dep't
of Corr. & Rehab., No. CV 17-6748-CBM (KK), 2017 WL
6048907, at *1 (C.D. Cal. Oct. 31, 2017), report and
recommendation adopted, 2017 WL 6060595 (C.D. Cal. Dec.
September 26, 2019, Petitioner constructively filed the
instant Petition. Dkt. 1. The Petition again appears to
challenge Petitioner's conviction for mayhem and assault
in Los Angeles County Superior Court on ...