Henderson v. Madden

• Decision Date: 03 June 2016
• Docket Number: NO. LA CV 16-02003-VBF (AGR),LA CV 16-02003-VBF (AGR)
• Court: U.S. District Court — Central District of California
• Parties: ARTHUR LEE HENDERSON, SR., Petitioner, v. RAYMOND MADDEN, WARDEN, Respondent.

ARTHUR LEE HENDERSON, SR., Petitioner, v. RAYMOND MADDEN, WARDEN, Respondent.

NO. LA CV 16-02003-VBF (AGR)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

June 3, 2016

ORDER

Referring Unauthorized Successive Habeas Claims to U.S. Court of Appeals Per Ninth Circuit R. 22-3(a);

Dismissing Doc. #4 (Motion for Rhines Stay) due to Mootness and Lack of Jurisdiction;

Dismissing Case Without Prejudice; Denying Certificate of Appealability; Terminating the Action (JS-6)

Represented by counsel, Arthur Lee Henderson, Senior ("petitioner"), was tried before a Los Angeles Superior Court jury, case number A918235, on charges of first-degree murder and attempted murder in a residence. On February 1, 1988, the jury convicted petitioner on both counts. On March 9, 1988, the superior court judge sentenced petitioner to a term of life without possibility of parole in state prison plus a consecutive eleven-year term. On direct appeal number B033856, the California Court of Appeal issued an order affirming petitioner's convictions and sentence on September 21, 1989. The California Supreme Court denied petitioner's ensuing petition for review on January 18, 1990. According to petitioner, he then filed multiple unsuccessful habeas corpus petitions in the state courts.

On September 18, 2007, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. section 2254 in this Court. See Case Management/Electronic Case Filing System Document ("Doc") 1 for Case No. LA CV 07-06038-VBF ("07-6038"). The respondent filed a motion to dismiss in February 2008, petitioner filed a response in March 2008, and respondent did not reply. The Magistrate Judge issued a report and recommendation ("R&R") recommending that the habeas petition be dismissed as untimely, and petitioner timely filed objections. See 07-6038 Docs 19 and 20. The Magistrate Judge then issued a final R&R on April 21, 2016, and petitioner did not object. On July 1, 2008, this Court issued an Order adopting the R&R and dismissing the habeas petition as untimely, and entered final judgment against petitioner. See 07-6038 Docs 21-23. Petitioner attempted to appeal, but this Court issued an Order denying a certificate of appealability ("COA") on July 30, 2008, and the United States Court of Appeals did likewise on May 26, 2009. See 07-6038 Docs 26 and 33.

Finally, proceeding pro se, Petitioner filed the instant petition for a Writ of Habeas Corpus by a Person in State Custody ("petition") pursuant to 28 U.S.C. § 2254 on March 23, 2016. He challenges the aforementioned 1988 L.A. County Superior Court convictions. As discussed below, the Court determines that this is a second-or-successive habeas corpus petition challenging the validity of these same convictions. Because petitioner failed to obtain the statutorily required permission from the United States Court of Appeals for the Ninth Circuit ("Circuit") before filing the petition here, the Court concludes that Circuit Rule 22-3(a) requires this Court to "refer" the petition to the Circuit.

After referring the habeas petition to the appellate court, this Court will then dismiss the action without prejudice for lack of subject-matter jurisdiction. The Court will further determine that petitioner's motion for stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528 (2005) must be dismissed due to mootness and lack of jurisdiction. To the extent that a certificate of appealability ("COA") is required to appeal the dismissal of this action, the dismissal of the stay motion, or the referral of the habeas petition, the Court will deny a COA. The Court will not enter a final judgment at this time because today's Order does not conclusively dispose of petitioner's habeas claims and it does not necessarilyforeclose his opportunity to have those claims heard on their merits in federal court. Accord generally Coward v. Jabe, No. 14-6562, - F. App'x -, 2016 WL 1638080, *2 (4^th Cir. Apr. 26, 2016) ("'Ordinarily, a district court order is not final until it has resolved all claims as to all parties. * * * [If] it appears from the record that the district court has not adjudicated all the issues in a case, then there is no final order . . . .'") (quoting Porter v. Zook, 803 F.23d 694, 696-97 (4^th Cir. 2015)).

AEDPA LEGAL STANDARD

The habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, the Court applies AEDPA in reviewing the California state courts' rulings on the federal constitutional claims asserted in the petition and in determining whether those claims are properly before the federal habeas court. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059 (1997).

AEDPA provides, in pertinent part: "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). A district court does not have jurisdiction to consider a "second or successive" petition absent authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152, 127 S. Ct. 793 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) ("When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.") (citation and quotation marks omitted).

This Court Has Authority to Determine Threshold Questions Bearing on Jurisdiction

Preliminarily, the Court notes that while a district court lacks jurisdiction to rule on second-or-successive habeas claims until petitioner has obtained prior authorization from the Circuit, it does have authority to determine the threshold questions of (1) whether these claims are second-or-successive as defined by AEDPA and (2) whether petitioner hasobtained Circuit authorization to file such claims here. As a sister court explained,

[T]his rule prohibiting the district court from considering the merits of a second or successive petition does not preclude the district court from first answering the threshold question of whether the petition is, in fact, second or successive. In Hatches, the United States Court of Appeals for the Third Circuit held:

[T]he District Court properly considered whether [the petitioner] had alleged facts sufficient to bring his petition within the gatekeeping requirement of [28 U.S.C.] section 2255 permitting "second or successive" petitions based upon newly discovered evidence or a new rule of constitutional law.

[Hatches v. Schultz, 381 F. App'x 134, 137 (3d Cir. 2010)]; see also Thomas v. Superintendent / Woodbourne Corr. Facility, 136 F.3d 227, 228 (2d Cir. 1997) (instructing a district court to determine whether a petition was second or successive by considering "whether the prior petition was dismissed with prejudice and whether the instant petition attacks the same judgment that was attacked in the prior petition"); * * *.

Buffey v. Ballard, 2012 WL 2675223, *4 (N.D. W.Va. July 5, 2012).

The Court determines that the petition is a second-or-successive petition challenging the same February 1, 1988 murder and attempted-murder convictions and sentence that were targeted by his 2007 federal habeas petition. Petitioner, stating that he was convicted as an aider and abettor, claims that a 2014 California Supreme Court case, People v. Chiu, 59 Cal. 4th 155, 325 P.3d 972, 172 Cal. Rptr.3d 438 (Cal. 2014), effectively held that he could not have the required mens rea to be convicted of first-degree murder. (Petition at 5.) Chiu held that "the connection between the defendant's culpability and the perpetrator's premeditative state is too attenuated to impose aider[-]and[-]abettor liability for first[-]degree murder under the natural and probable consequences doctrine." In such circumstances, the state Supreme Court held, a defendant may be convicted only of second-degree murder. See Chiu, 59 Cal. 4th at 166, 325 P.3d 972.

If Petitioner wishes to pursue federal habeas relief, he must first obtain the Circuit's authorization to file second-or-successive claims in district court. The record contains no evidence that petitioner has obtained such authorization.

The Court Must "Refer" This Habeas Petition to the United States Court of Appeals

Ninth Circuit Rule 22-3(a) clearly states, in pertinent part, "[i]f a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals." Emphasis added.¹

It is a venerable principle of construction that the word "shall" indicates that the action is mandatory. See Sebelius v. Auburn Regional Med. Ctr., - U.S. -, 133 S. Ct. 817, 824 (2013); Nat'l Ass'n of Homebuilders v. Defenders of Wildlife, 544 U.S. 644, 661, 127 S. Ct. 2518 (2007); see also Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 112 (2012) (referring to "[t]he traditional, commonly repeated rule . . . that shall is mandatory and may is permissive"); cf. Anglers Conservation Network v. Pritzker, 809 F.3d 664, 671 (D.C. Cir. 2016) ("Ordinarily, legislation using 'shall' indicates a mandatory duty while legislation using 'may' grants discretion.") (citing Lopez v. Davis, 531 U.S. 230, 241, 121 S. Ct. 714 (2001)).

"Therefore, when confronted with a second or successive habeas petition attacking the same conviction or sentence as a prior federal habeas petition which was denied on the merits, a district court has no choice but to 'refer' the petition to the U.S. Court of Appeals for the Ninth Circuit." Smith v. United States, ED CV 11-00521-VBF Doc. 29 at 9 (C.D. Cal. July 23, 2014). "Failure to do so would violate the plain language of Ninth Circuit Rule 22-3(a)." Garcia v. Busby, No. LA CV 14-04224-VBF-PLA, 2014 WL 2761333, *3 (C.D....