United States District Court, C.D. California
ORDER: DISMISSING PETITION AS SECOND OR SUCCESSIVE;
DENYING CERTIFICATE OF APPEALABILITY; AND REFERRING PETITION
PURSUANT TO NINTH CIRCUIT RULE 22-3(A)
ANDRÉ BIROTTE JR., UNITED STATES DISTRICT JUDGE
On June
26, 2018, Petitioner filed a 28 U.S.C. § 2254 habeas
petition in the United States District Court for the Northern
District of California (the “First Petition”).
The First Petition challenged Petitioner's conviction
sustained in Los Angeles Superior Court No. BA394946 (the
“State Conviction”) and raised as
Petitioner's federal habeas claims three of the same
claims that he had raised in his state direct appeal. The
First Petition was transferred to this District on August 14,
2018, was assigned No. CV 18-7173-AB (GJS), and was served on
Respondent the next day. Briefing ensued, the United States
Magistrate Judge issued a Report and Recommendation, and on
October 28, 2019, the Court accepted the Report and
Recommendation, denied the First Petition on its merits, and
Judgment was entered.
In the
interim, on December 14, 2018, Petitioner initiated a second
28 U.S.C. § 2254 habeas action, this time in the United
States District Court for the Southern District of California
(where it was assigned No. CV 18-2814). On February 8, 2019,
the habeas petition filed in the 18-2814 action was ordered
to be transferred to this District, [1] and on February 11, 2019, it
was given No. CV 19-1023-AB (GJS) (hereafter, “Second
Petition.”) The Second Petition - like the First
Petition in the earlier-filed 18-7173 action - challenged
Petitioner's State Conviction and appeared to raise the
same claims that Petitioner raised in his state direct appeal
and which already were pending before the Court in the First
Petition action. On March 4, 2019, the Court dismissed the
Second Petition action as duplicative of the First Petition
action. On April 30, 2019, the Court denied Petitioner's
motion for reconsideration. Petitioner has appealed the
dismissal of the Second Petition, and his request for a
certificate of appealability is pending in the United States
Court of Appeals for the Ninth Circuit (No.
19-55797).[2]
Petitioner
now has filed another 28 U.S.C. § 2254 habeas petition
challenging the State Conviction and his related sentence
[Dkt. 1, “Petition”]. The instant Petition
consists of an unsigned habeas petition form (from the
Southern District) that alleges a single claim attacking
Petitioner's State Conviction sentence. Without
explanation, Petitioner labels his sentence as
“unauthorized, ” alludes to “illegitimate
enhancements, ” double jeopardy, California Penal Code
§ 654, and the Fifth and Fourteenth Amendments, and then
“refers” the Court to an attached memorandum of
points and authorities that Petitioner apparently may have
filed in the state trial court (“Memorandum”).
The 70-plus page Memorandum, unfortunately, does little to
explain Petitioner's intended habeas claim(s), given that
its allegations are difficult to follow. As best as the Court
can tell, Petitioner appears to contend - based on citations
to and quotations from various California decisions (which
pre-date the State Conviction and sentence), California Penal
Code Statutes, and the Witkin treatise - that the California
Penal Code § 12022.53 firearm enhancement imposed in
connection with his sentence is improper and that his trial
counsel provided ineffective assistance in various respects.
Petitioner further appears to contend that insufficient
evidence existed to impose the Section 12022.53 enhancement,
and that he is entitled to relief under S.B. 620 (namely, to
have the trial court exercise its discretion to strike the
enhancement).[3]
DISCUSSION
State
habeas petitioners generally may file only one federal habeas
petition challenging a particular state conviction and/or
sentence. See, e.g., 28 U.S.C. § 2244(b)(1)
(courts must dismiss a claim presented in a second or
successive petition when that claim was presented in a prior
petition) and § 2244(b)(2) (with several exceptions,
courts must dismiss a claim presented in a second or
successive petition when that claim was not presented in a
prior petition). “A habeas petition is second or
successive . . . if it raises claims that were or could have
been adjudicated on the merits” in an earlier Section
2254 petition. McNabb v. Yates, 576 F.3d 1028, 1029
(9th Cir. 2009).
Even
when Section 2244(b) provides a basis for pursuing a second
or successive Section 2254 habeas petition, state habeas
petitioners seeking relief in this District Court must
first obtain authorization from the Ninth Circuit
before filing any such second or successive petition. 28
U.S.C. § 2244(b)(3). The Ninth Circuit “may
authorize the filing of the second or successive [petition]
only if it presents a claim not previously raised that
satisfies one of the two grounds articulated in §
2242(b)(2).” Burton v. Stewart, 127 S.Ct. 793,
796 (2007).
The
First Petition raised various federal constitutional claims
challenging the State Conviction and was denied on its
merits. The present Petition again challenges that same State
Conviction and its related sentence and thus, on its face, is
second or successive within the meaning of Section 2244(b).
The Court has reviewed the Ninth Circuit's dockets, and
there is no evidence that Petitioner has sought, much less
obtained, leave from the Ninth Circuit to file the current
Petition.
Whether
or not the claim(s) alleged in the Petition may, as a prima
facie matter, satisfy the requisites of 28 U.S.C. §
2244(b)(2) is a question that must be presented to and
resolved by the Ninth Circuit, not this District Court.
Petitioner, however, has not obtained permission from the
Ninth Circuit to bring a second or successive Section 2254
petition raising the claims alleged in the Petition. This
Court therefore lacks jurisdiction to consider the Petition.
28 U.S.C. § 2244(b); see also Burton, 127 S.Ct.
at 799 (district court lacks jurisdiction to consider the
merits of a second or successive petition absent prior
authorization from the circuit court).
Accordingly,
IT IS ORDERED that: the Petition is DISMISSED; and Judgment
shall be entered dismissing this action without prejudice.
In
addition, pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases in the United States District Courts, the
Court has considered whether a certificate of appealability
is warranted in this case. See 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). The
Court concludes that a certificate of appealability is
unwarranted, and thus, a certificate of appealability is
DENIED.
IT IS
FURTHER ORDERED that the Clerk of the Court shall refer the
Petition to the Ninth Circuit pursuant to Ninth Circuit Rule
22-3(a).
IT
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