Jackson v. Hedgpeth

• Decision Date: 24 July 2013
• Docket Number: NO. CV 13-04203-VBF (MAN),CV 13-04203-VBF (MAN)
• Court: U.S. District Court — Central District of California
• Parties: RICARDO JACKSON, Petitioner, v. A. HEDGPETH, WARDEN, Respondent.

RICARDO JACKSON, Petitioner,

v.A. HEDGPETH, WARDEN, Respondent.

NO. CV 13-04203-VBF (MAN)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

DATED: July 24, 2013

ORDER DECLINING TO TRANSFER PETITION

TO NINTH CIRCUIT, DISMISSING PETITION

FOR LACK OF JURISDICTION, and DENYING

A CERTIFICATE OF APPEALABILITY

Proceeding pro se, California state prisoner Ricardo Jackson ("petitioner") filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 ("petition") in the United States District Court for the Northern District of California in April 2013, and the petition was transferred to this district in June 2013. This is the second section 2254 habeas petition filed by petitioner in this court stemming from his 1999 L.A. County Superior Court conviction ("the state conviction"), on which he was sentenced in 2000.

Under the Rules Governing Section 2254 Cases in the United States District Courts, a habeas petition filed by a prisoner in state custody "must" be summarily dismissed "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . . ." Rule 4, 28 U.S.C. foll. § 2254. Supreme Court and Ninth Circuit precedent requires that this petition either be dismissed pursuant to 28 U.S.C. § 2244(b) for lack of jurisdiction, or transferred to the Ninth Circuit forconsideration as an application for leave to file a second or successive petition. For reasons set forth below, the Court will dismiss the petition rather than transfer and will deny a certificate of appealability ("COA").

BACKGROUND

On April 19, 2002, Petitioner filed a section 2254 habeas petition in this Court in Case No. CV 02-3225-JFW (PJW) ("the prior action"). The prior action challenged petitioner's state conviction through habeas claims that: the trial court erred by allowing the prosecution to amend the information on the eve of trial; there was insufficient evidence to support petitioner's robbery conviction; petitioner's Three Strikes sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment; the trial court improperly denied petitioner's motion for a new trial based on a newly discovered witness; because petitioner was acquitted on a lesser included offense, the Double Jeopardy Clause precluded his conviction for robbery; the trial court erred by failing to instruct the jury on the lesser included offense of theft; and petitioner's appellate counsel provided ineffective assistance. On September 20, 2004, final judgment was entered denying the prior action petition on its merits and dismissing it with prejudice. Petitioner appealed to the Ninth Circuit (Case No. 04-56855), and on January 18, 2005 the Circuit denied a COA. Petitioner thereafter sought a writ of certiorari, which the Supreme Court denied on November 14, 2005 (No. 05-6700)¹

The instant petition presents a single claim challenging the validity of petitioner's Three Strikes sentence. Petitioner contends that it was improper for the sentencing judge to use prior convictions stemming from plea agreements as "strikes" when sentencing him on his most recent conviction, because doing so violated those earlier plea agreements.

The Ninth Circuit dockets show that, since his appeal of the denial of the prior action petition, petitioner has not filed any Ninth Circuit proceeding. He has not sought or obtained leave from the NinthCircuit to file a second or successive section 2254 petition.

ANALYSIS

Petitioner's current action is a "second or successive petition" as defined by AEDPA² because it challenges the same 1999 L.A. County Superior Court robbery conviction as his 2002 section 2254 petition filed in this district, which was denied in 2004. See Weatherspoon v. Wofford, 2013 WL 2353644, *1 (C.D. Cal. May 28, 2013) (Feess, J.) ("Here, the Petition is a second of successive petition that challenges the same conviction and sentence imposed by the same judgment of the state court as Weatherspoon I.").

The fact that the prior petition was denied on its merits distinguishes our case from prior cases in which it was unnecessary for a habeas petitioner to obtain leave from the Circuit before filing. See Mendenhall v. Spearman, 2013 WL 2323139, *1 (C.D. Cal. May 28, 2013) (Wu, J.) ("Since the Petition . . . in the Prior Action was denied on the merits, this case is distinguishable from the other cases in which permission from the Circuit to file a subsequent petition has been found unnecessary. For example, the Petition now pending does not raise a claim raised in a prior petition that was dismissed without prejudice as unexhausted. Nor does it raise a claim raised in a prior petition that was dismissed without prejudice as premature.") (citing Slack v. McDaniel, 529 U.S. 473, 487, 120 S. Ct. 1595 (2000) and Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45, 118 S. Ct. 1618 (1998), respectively); see also Leonetti v. Williams, 499 F. App'x 651, 652-53 (9th Cir. 2012) (not required to obtain leave from Circuit before filing second petition where earlier petition had been dismissed without prejudice based on deficient pleading); Benton v. Washington, 106 F.3d 162, 164-65 (7th Cir. 1996) (prior petition rejected due to failure to pay filing fee did not "count" for purpose of determining whether the instant habeas petition was "second or successive").

AEDPA provides that "[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed", 28 U.S.C. § 2244(b)(1), withoutfurther analysis. That provision does not apply, because petitioner is not re-asserting claims asserted in the earlier petition. Rather, this petition is governed by 28 U.S.C. § 2244(b)(2), which states as follows:

A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless -

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B) (I) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the petitioner guilty . . . .

With an exception not applicable here,³ before a federal habeas petitioner raises an issue or claim that he could have asserted in a prior federal petition but did not, he is required to obtain leave from the Circuit. See 28 U.S.C. § 2244(b)(3)(A) ("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."); see, e.g., Mendenhall v. Spearman, 2013 WL 2323139, *1 (C.D. Cal. May 28, 2013) (Wu, J.) ("Neither of the grounds for relief alleged in the Petition now pending corresponds to any of the claims alleged. . . in the prior action. Under § 2244(b)(3)(A), where a federal habeas petitioner seeks to file a subsequent habeas petition raising a claim not raised in the petitioner's prior petition, the petitioner must first seek permission from the Circuit to file that . . . petition.").

To obtain leave to file, petitioner would have shouldered the burden of satisfying a Circuit panel that his petition satisfies the requirements of 28 U.S.C. § 2255(h), which provides as follows:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

See, e.g., United States v. Penry, No. 12-8079, - F. App'x -, 2013 WL 2378577, *1 (10th Cir. 2013) (district court had explained that "even if it construed the motion as a collateral attack . . . under . . . § 2255, it would be a second or successive motion, and Mr. Penry had not demonstrated, as required by § 2255(h), that the motion contained either newly discovered evidence or a new rule of retroactive constitutional law.").⁴

Petitioner's failure to obtain the Ninth's Circuit leave to file this second-or-successive petition constitutes a basis for dismissing his petition for lack of subject-matter jurisdiction.⁵ See, e.g.,dismissing a second or successive petition filed without leave of the Circuit: McGauthy v. Valenzuela, 2013 WL 3668463 (C.D. Cal. July 12, 2013) (Wu, J.) Knisley v. Vasquez, 2013 WL 2154010, *2-*3 (C.D. Cal. May 15, 2013) (Feess, J.); Scott v. California, 2013 WL 1869032 (C.D. Cal. May 3, 2013) (Real, J.); Secundino v. Figueroa, 2013 WL 1010551 (C.D. Cal. Mar. 13, 2013) (Carter, J.); Carr v. Janda, 2013 WL 419231 (C.D. Cal. Jan. 30, 2013) (Fairbank, J.); Truax v. Sandor, 2012 WL 3810260, *1 (C.D. Cal. Aug. 30, 2012); Rosas v. Sanders, 2012 WL 4107819, *3 (C.D. Cal. Aug. 13, 2012), adopted, 2012 WL 4174989 (C.D. Cal. Sept. 17, 2012) (Pregerson, J.).

THIS PETITION SHOULD NOT BE TRANSFERRED TO THE NINTH CIRCUIT

Alternatively, statute gives this Court the discretion to transfer this petition to the Ninth Circuit for consideration as an application for leave to file a second-or-successive petition. See Jones v. California, 2013 WL 875971, *2 (E.D. Cal. Mar. 7, 2013) ("In certain cases the district court may transfer the action, in the interest of justice, to the court where the action properly could have been brought.") (citing 28 U.S.C. § 1631 a...