Hernandez v. People
| Decision Date | 08 September 2021 |
| Docket Number | 2:20-cv-05930-JLS-JC |
| Court | U.S. District Court — Central District of California |
| Parties | JOSHUA HERNANDEZ, Petitioner, v. THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent. |
ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED
On June 28, 2020, petitioner Joshua Hernandez, proceeding pro se, signed and is deemed to have constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody with attachments (“Petition”) pursuant to 28 U.S.C. § 2254, which was formally filed on June 30 2020.[1] Construing the Petition liberally, petitioner appears to challenge (1) a 14-year sentence imposed on April 25, 2011 in Los Angeles County Superior Court Case No. BA369107 (the “2011 Case”), claiming that the court deprived petitioner of due process by refusing to strike, pursuant to California Penal Code section 1385, prior conviction enhancements under California Penal Code sections 667(a)(1) (five years) and 667.5(B) (one year), apparently arising from his 2006 conviction and prison term in Case No. GA965596 (court unknown) (“2006 Case”); and (2) the validity of his guilty plea entered in February 2006 in the 2006 Case, claiming that at the time of such plea, he was not informed of its future consequences. (Petition at 2, 5, 12-14). Petitioner argues that this Court should order the trial court to strike the enhancements imposed in the 2011 Case pursuant to “SB 1393 and SB 136.” (Petition at 12).
On March 8, 2011, a jury in the 2011 Case convicted petitioner of two counts of first degree residential burglary (respectively, “Count One” and “Count Two”). Thereafter, petitioner admitted that he had previously been convicted of burglary, a “serious felony” under state law. On April 25, 2011, the trial court sentenced petitioner to 14 years in state prison. See Petition at 2; People v. Hernandez, 2012 WL 2855809 (Cal.Ct.App. July 12, 2012).
Petitioner appealed, raising sufficiency of the evidence and instructional error claims. On July 12, 2012, in Case No. B232673, the California Court of Appeal, Second Appellate District (“Court of Appeal”) affirmed the conviction on Count One, but reversed the conviction on Count Two. See People v. Hernandez, 2012 WL 2855809 (vacating petitioner's conviction on Count Two). Because petitioner's convictions on Count One and Count Two had been ordered to run concurrently, this ruling did not impact the sentence. On September 24, 2012, the Los Angeles County Superior Court filed an amended Abstract of Judgment consistent with the Court of Appeal's reversal of the conviction on Count Two. (Petition at 33-34). Petitioner did not seek further direct review. (Petition at 20).
As detailed below, petitioner thereafter filed two rounds of state habeas petitions and in between such rounds, filed one federal habeas petition.
On May 24, 2013, petitioner filed a habeas petition with the Los Angeles County Superior Court in the 2011 Case, which such court denied on March 7, 2014. On February 21, 2014, petitioner filed a habeas petition in the Court of Appeal (Case No. B254485), which such court denied on March 13, 2014. On April 28, 2014, petitioner filed a petition in the California Supreme Court (Case No. S218100), which such court denied on July 9, 2014.
On September 29, 2014, petitioner filed a Petition for Writ of Habeas Corpus (“Prior Federal Petition”) in the Prior Federal Action claiming (1) petitioner's due process rights were violated when the trial court failed to dismiss a juror whose home was burglarized during the trial, as well as two other jurors whom she had told about the burglary; and (2) petitioner's trial and appellate counsel were ineffective because they failed to challenge the trial court's decision to allow the jurors to remain on the panel. On October 12, 2016, the assigned magistrate judge issued a Report and Recommendation (“Prior R&R”) recommending that judgment be entered denying the Prior Federal Petition on its merits and dismissing the Prior Federal Action with prejudice. On December 22, 2016, the District Judge accepted the Prior R&R, adjudged that the Prior Federal Petition Report be denied and the Prior Federal Action be dismissed with prejudice, and denied petitioner a certificate of appealability. Petitioner did not appeal.
On September 3, 2019 and October 24, 2019, petitioner filed state habeas petitions with the Los Angeles County Superior Court in the 2011 Case, raising claims similar to those raised herein, and such court denied such petitions on December 24, 2019. (Petition at 23-25 ().
On January 16, 2020, petitioner filed a petition in the Court of Appeal (Case No. B303679), which such court denied on January 22, 2020. (Petition at 27 ()). On February 24, 2020, petitioner filed a petition in the California Supreme Court (Case No. S260827), which such court denied on June 10, 2020. (Petition at 10-21 (petition); Petition at 29 ()).
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts allows a district court to dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . . .” Rule 4 of the Rules Governing Section 2254 Cases. Based upon the Petition and the federal and California state court records as to which the Court has taken judicial notice, and for the reasons discussed below, the Court orders petitioner to show cause why the Petition/claims therein should not be dismissed.
A petitioner seeking federal habeas relief must name the proper respondent. Federal courts lack personal jurisdiction when a habeas petition fails to name a proper respondent. See Ortiz -Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citations omitted). A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer having custody of him as the respondent to the petition. See Rule 2(a) of the Rules Governing § 2254 Cases in the United States District Courts (“Habeas Rules”); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). The appropriate respondent is petitioner's immediate custodian (i.e., the prison warden at the facility where he is currently housed). See Rumsfeld v. Padilla, 542 U.S. 426, 439 (2004); see also 28 U.S.C. § 2242; Rule 2(a) of the Habeas Rules.
Here, petitioner improperly names the People of the State of California as respondent. Petitioner's failure to name a proper respondent requires dismissal of his habeas petition for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 1326 (9th Cir.), cert. denied, 398 U.S. 914 (1970).
As noted above, petitioner filed the Prior Federal Petition challenging the judgment in the 2011 Case and such case was rejected on the merits. Accordingly the instant Petition - at least to the extent it challenges the sentence/judgment in the 2011 Case[3] - is successive and as explained below, the Court lacks jurisdiction to consider without authorization from the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”).[4]
Before a habeas petitioner may file a second or successive petition in a district court, he must apply to the appropriate court of appeals for an order authorizing the district court to consider the application. Burton v. Stewart, 549 U.S. 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(3)(A)). This provision “creates a ‘gatekeeping' mechanism for the consideration of second or successive applications in district court.” Felker v. Turpin, 518 U.S. 651, 657 (1996); see also Reyes v. Vaughn, 276 F.Supp.2d 1027, 1028-30 (C.D. Cal. 2003) (). A district court lacks jurisdiction to consider the merits of a second or successive habeas petition in the absence of proper authorization from a court of appeals. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998)), cert. denied, 538 U.S. 984 (2003).
The court of appeals may authorize the filing of a second or successive petition only if it determines that the petition makes a prima facie showing that at least one claim within the petition satisfies the requirements of 28 U.S.C. Section 2244(b), i.e., that a claim which was not presented in a prior application (1) relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court; or (2) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence and the facts underlying the claim would be sufficient to establish that, but for constitutional errors, no reasonable factfinder would have found the applicant guilty of...
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