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Mills v. CA Dept. of Corrections and Rehabilitation

United States District Court, C.D. California

October 24, 2019

Kenneth W. Mills
v.
CA Dept. of Corrections and Rehabilitation

          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 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 issue.

         II.

         PROCEDURAL HISTORY

         A. STATE COURT PROCEEDINGS

         Petitioner 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).[1] 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.

         B. FEDERAL HABEAS PROCEEDINGS

         On April 17, 2017, Petitioner constructively filed[2] 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.

         On 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.

         On 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. 4, 2017).[3]

         On 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 ...


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