1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 AARON JOHNSON, ) No. CV 19-7511-PA (PLA) ) 13 Petitioner, ) ) ORDER DISMISSING SUCCESSIVE 14 v. ) PETITION WITHOUT PREJUDICE ) 15 THE PEOPLE OF CALIFORNIA, ) ) 16 Respondent. ) ) 17 18 I. 19 BACKGROUND 20 On August 29, 2019, petitioner filed a Petition for Writ of Habeas Corpus by a Person in 21 State Custody under 28 U.S.C. § 2254 (the “Petition”). In the Petition, petitioner challenges his 22 1993 conviction for first degree murder, alleging that he is innocent based on evidence that had 23 been concealed by the prosecution and police and therefore was never presented at his trial. 24 (See ECF No. 1 at 17-43). 25 26 27 28 1 This is the seventh federal petition petitioner has filed in this Court.1 Petitioner’s first 2 federal petition for writ of habeas corpus challenged his 1993 conviction based on the following 3 claims: ineffective assistance of trial and appellate counsel, unlawful search and seizure, 4 insufficient evidence, and jury misconduct. The first petition was dismissed without prejudice on 5 June 6, 1996, for failure to exhaust state court remedies. (See Case No. CV 96-3868-DT (CT), 6 ECF No. 4; Case No. 00-4374-RSWL (CT), ECF No. 3 at 2). Petitioner’s second federal petition, 7 raising the same grounds and again challenging his 1993 conviction, was dismissed without 8 prejudice on June 25, 1997, for failure to exhaust state court remedies. (See Case No. CV 97- 9 4416-RAP (CT), ECF No. 4). After the California Supreme Court’s denial of petitioner’s state 10 habeas petition on December 23, 1997 (see Case No. CV 00-4374-RSWL (CT), ECF No. 3 at 2), 11 petitioner filed his third federal petition, again raising the same grounds he had raised in his 12 previous federal habeas petitions. (See id. at 3). The district judge dismissed the third federal 13 habeas petition with prejudice as time barred on August 27, 1998. (See Case No. CV 98-0989- 14 DT (JG), ECF Nos. 12, 15, 16). 15 Petitioner’s subsequent federal petitions were each dismissed without prejudice as 16 successive. In particular, his fourth federal petition, alleging that he was “denied meaningful 17 access to the courts because the California courts denied his requests for free copies of the 18 clerk’s and reporter’s transcripts,” was dismissed on May 2, 2000. (See Case No. CV 00-4374- 19 RSWL (CT), ECF No. 3 at 3). His fifth federal petition, in which petitioner again challenged his 20 1993 conviction by raising claims of ineffective assistance of counsel, unlawful seizure, 21 insufficiency of the evidence, and jury misconduct, was dismissed on August 3, 2000. (See Case 22 No. CV 00-7869-DT (CT), ECF Nos. 5, 6). His sixth federal petition, which was filed in 2014 and 23 challenged his 1993 conviction based on claims of ineffective assistance of counsel and that the 24 trial court refused to allow petitioner the opportunity to present newly discovered evidence, was 25 dismissed on August 15, 2014. (See Case No. 14-4164-RT (PLA), ECF No. 5). 26 27 1 Petitioner’s six previous federal petitions were filed under the following case numbers: 28 CV 96-3868-DT (CT); CV 97-4416-RAP (CT); CV 98-0989-DT (JG); CV 00-04374-RSWL (CT); 1 II. 2 DISCUSSION 3 A federal habeas petition is successive if it raises claims that were or could have been 4 adjudicated on the merits in a previous petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th 5 Cir. 2001) (per curiam). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 6 provides that a claim presented in a second or successive federal habeas petition that was not 7 presented in a prior petition shall be dismissed unless: 8 (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 9 previously unavailable; or 10 (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and 11 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as 12 a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant 13 guilty of the underlying offense. 14 28 U.S.C. § 2244(b)(2)(A), (B). Furthermore, “[b]efore a second or successive application 15 permitted by this section is filed in the district court, the applicant shall move in the appropriate 16 court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. 17 § 2244(b)(3)(A). 18 As set forth above, petitioner’s third federal petition challenging his 1993 conviction was 19 dismissed with prejudice as time barred on August 27, 1998. (See Case No. CV 98-0989-DT 20 (JG), ECF Nos. 12, 15, 16). As a dismissal of a prior petition for untimeliness creates a 21 “permanent and incurable” bar to federal habeas review, the Ninth Circuit has held that the 22 “dismissal of a section 2254 habeas petition for failure to comply with the statute of limitations 23 renders subsequent petitions second or successive for purposes of the AEDPA[.]” McNabb v. 24 Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (citation omitted); see also Henderson v. Lampert, 396 25 F.3d 1049, 1053 (9th Cir. 2005) (dismissal of an earlier petition with prejudice because of a 26 procedural default constitutes a disposition on the merits and renders a subsequent petition 27 second or successive for purposes of 28 U.S.C. § 2244(b)). Accordingly, petitioner’s fourth, fifth, 28 1 and sixth federal petitions -- each of which raised claims attacking his 1993 conviction -- were 2 dismissed as successive. 3 In the instant Petition, petitioner challenges the same conviction that he challenged in each 4 of his previous federal petitions, setting forth the following grounds for relief: (1) he recently 5 discovered that exculpatory evidence -- consisting of a mobile phone, pager, and alibi statement -- 6 was concealed by the prosecution and police detectives; (2) the prosecution and police failed to 7 preserve the exculpatory evidence; and (3) petitioner was subjected to an illegal search and 8 seizure. (ECF No. 1 at 33-45). Petitioner further alleges that he is permitted to bring his “new 9 evidence” claims pursuant to California Penal Code § 1473(b)(3), which was amended in 2017 10 to add that a state habeas petition “may be prosecuted for, but not limited to, the following 11 reasons: . . . [¶] New evidence exists that is credible, material, presented without substantial 12 delay, and of such decisive force and value that it would have more likely than not changed the 13 outcome at trial.”2 Cal. Penal Code § 1473(b)(3)(A); (see ECF No. 1 at 18). 14 Given that petitioner’s third habeas petition was dismissed in 1998 as time barred, and that 15 his fourth, fifth, and sixth petitions were each dismissed as successive, the Court concludes that 16 the instant Petition, which challenges his 1993 conviction, is also successive. Moreover, even if 17 petitioner could satisfy any of the exceptions listed in 28 U.S.C. § 2244
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1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 AARON JOHNSON, ) No. CV 19-7511-PA (PLA) ) 13 Petitioner, ) ) ORDER DISMISSING SUCCESSIVE 14 v. ) PETITION WITHOUT PREJUDICE ) 15 THE PEOPLE OF CALIFORNIA, ) ) 16 Respondent. ) ) 17 18 I. 19 BACKGROUND 20 On August 29, 2019, petitioner filed a Petition for Writ of Habeas Corpus by a Person in 21 State Custody under 28 U.S.C. § 2254 (the “Petition”). In the Petition, petitioner challenges his 22 1993 conviction for first degree murder, alleging that he is innocent based on evidence that had 23 been concealed by the prosecution and police and therefore was never presented at his trial. 24 (See ECF No. 1 at 17-43). 25 26 27 28 1 This is the seventh federal petition petitioner has filed in this Court.1 Petitioner’s first 2 federal petition for writ of habeas corpus challenged his 1993 conviction based on the following 3 claims: ineffective assistance of trial and appellate counsel, unlawful search and seizure, 4 insufficient evidence, and jury misconduct. The first petition was dismissed without prejudice on 5 June 6, 1996, for failure to exhaust state court remedies. (See Case No. CV 96-3868-DT (CT), 6 ECF No. 4; Case No. 00-4374-RSWL (CT), ECF No. 3 at 2). Petitioner’s second federal petition, 7 raising the same grounds and again challenging his 1993 conviction, was dismissed without 8 prejudice on June 25, 1997, for failure to exhaust state court remedies. (See Case No. CV 97- 9 4416-RAP (CT), ECF No. 4). After the California Supreme Court’s denial of petitioner’s state 10 habeas petition on December 23, 1997 (see Case No. CV 00-4374-RSWL (CT), ECF No. 3 at 2), 11 petitioner filed his third federal petition, again raising the same grounds he had raised in his 12 previous federal habeas petitions. (See id. at 3). The district judge dismissed the third federal 13 habeas petition with prejudice as time barred on August 27, 1998. (See Case No. CV 98-0989- 14 DT (JG), ECF Nos. 12, 15, 16). 15 Petitioner’s subsequent federal petitions were each dismissed without prejudice as 16 successive. In particular, his fourth federal petition, alleging that he was “denied meaningful 17 access to the courts because the California courts denied his requests for free copies of the 18 clerk’s and reporter’s transcripts,” was dismissed on May 2, 2000. (See Case No. CV 00-4374- 19 RSWL (CT), ECF No. 3 at 3). His fifth federal petition, in which petitioner again challenged his 20 1993 conviction by raising claims of ineffective assistance of counsel, unlawful seizure, 21 insufficiency of the evidence, and jury misconduct, was dismissed on August 3, 2000. (See Case 22 No. CV 00-7869-DT (CT), ECF Nos. 5, 6). His sixth federal petition, which was filed in 2014 and 23 challenged his 1993 conviction based on claims of ineffective assistance of counsel and that the 24 trial court refused to allow petitioner the opportunity to present newly discovered evidence, was 25 dismissed on August 15, 2014. (See Case No. 14-4164-RT (PLA), ECF No. 5). 26 27 1 Petitioner’s six previous federal petitions were filed under the following case numbers: 28 CV 96-3868-DT (CT); CV 97-4416-RAP (CT); CV 98-0989-DT (JG); CV 00-04374-RSWL (CT); 1 II. 2 DISCUSSION 3 A federal habeas petition is successive if it raises claims that were or could have been 4 adjudicated on the merits in a previous petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th 5 Cir. 2001) (per curiam). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 6 provides that a claim presented in a second or successive federal habeas petition that was not 7 presented in a prior petition shall be dismissed unless: 8 (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 9 previously unavailable; or 10 (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and 11 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as 12 a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant 13 guilty of the underlying offense. 14 28 U.S.C. § 2244(b)(2)(A), (B). Furthermore, “[b]efore a second or successive application 15 permitted by this section is filed in the district court, the applicant shall move in the appropriate 16 court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. 17 § 2244(b)(3)(A). 18 As set forth above, petitioner’s third federal petition challenging his 1993 conviction was 19 dismissed with prejudice as time barred on August 27, 1998. (See Case No. CV 98-0989-DT 20 (JG), ECF Nos. 12, 15, 16). As a dismissal of a prior petition for untimeliness creates a 21 “permanent and incurable” bar to federal habeas review, the Ninth Circuit has held that the 22 “dismissal of a section 2254 habeas petition for failure to comply with the statute of limitations 23 renders subsequent petitions second or successive for purposes of the AEDPA[.]” McNabb v. 24 Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (citation omitted); see also Henderson v. Lampert, 396 25 F.3d 1049, 1053 (9th Cir. 2005) (dismissal of an earlier petition with prejudice because of a 26 procedural default constitutes a disposition on the merits and renders a subsequent petition 27 second or successive for purposes of 28 U.S.C. § 2244(b)). Accordingly, petitioner’s fourth, fifth, 28 1 and sixth federal petitions -- each of which raised claims attacking his 1993 conviction -- were 2 dismissed as successive. 3 In the instant Petition, petitioner challenges the same conviction that he challenged in each 4 of his previous federal petitions, setting forth the following grounds for relief: (1) he recently 5 discovered that exculpatory evidence -- consisting of a mobile phone, pager, and alibi statement -- 6 was concealed by the prosecution and police detectives; (2) the prosecution and police failed to 7 preserve the exculpatory evidence; and (3) petitioner was subjected to an illegal search and 8 seizure. (ECF No. 1 at 33-45). Petitioner further alleges that he is permitted to bring his “new 9 evidence” claims pursuant to California Penal Code § 1473(b)(3), which was amended in 2017 10 to add that a state habeas petition “may be prosecuted for, but not limited to, the following 11 reasons: . . . [¶] New evidence exists that is credible, material, presented without substantial 12 delay, and of such decisive force and value that it would have more likely than not changed the 13 outcome at trial.”2 Cal. Penal Code § 1473(b)(3)(A); (see ECF No. 1 at 18). 14 Given that petitioner’s third habeas petition was dismissed in 1998 as time barred, and that 15 his fourth, fifth, and sixth petitions were each dismissed as successive, the Court concludes that 16 the instant Petition, which challenges his 1993 conviction, is also successive. Moreover, even if 17 petitioner could satisfy any of the exceptions listed in 28 U.S.C. § 2244(b)(2)(A) or (B),3 he is still 18 required -- as he was clearly advised in the Court’s prior Order dismissing his sixth petition in Case 19 20 2 The statute defines “new evidence” as “evidence that has been discovered after trial, that could not have been discovered prior to trial by the exercise of due diligence, and is admissible 21 and not merely cumulative, corroborative, collateral, or impeaching.” Cal. Penal Code § 22 1473(b)(3)(B). 23 3 The Court notes that petitioner’s reliance on the 2017 amendment of California Penal Code § 1473 to bring his “new evidence” claims could be construed as an argument that the 24 instant Petition satisfies Section 2244(b)(2)(A), which allows a successive petition to be filed if the habeas claims rely on a new rule of constitutional law that was made retroactive to cases on 25 collateral review by the Supreme Court, that was previously unavailable. Such an argument would 26 fail, however, as “a new state right afforded by an amended state statute does not create a new federal constitutional right and certainly is not the equivalent of a federal constitutional right newly 27 recognized by the United States Supreme Court and made retroactively application to cases on collateral review.” Trejo v. Sherman, 2016 WL 9076049, at *2 (C.D. Cal. Oct. 24, 2016), Report 28 1 No. CV 14-4164-RT (PLA) -- to request and obtain authorization from the Ninth Circuit before filing 2 a successive petition. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 152-53, 127 S.Ct. 3 793, 798, 166 L.Ed.2d 628 (2007) (AEDPA requires petitioner to receive authorization from the court 4 of appeals before filing a second habeas petition). Because there is no indication that petitioner has 5 obtained such authorization from the Ninth Circuit, the Court is without jurisdiction to entertain the 6 instant Petition.4 See Burton, 549 U.S. at 153; Cooper, 274 F.3d at 1274 (“‘When the AEDPA is in 7 play, the district court may not, in the absence of proper authorization from the court of appeals, 8 consider a second or successive habeas application.’”). 9 Accordingly, dismissal of the instant Petition without prejudice as successive is appropriate.5 10 11 4 Although the Court lacks jurisdiction to entertain petitioner’s successive Petition, an additional basis for dismissal may exist. In the Petition, petitioner states that he has been 12 “release[d] from prison.” (ECF No. 1 at 3). Additionally, petitioner’s name was not found in a search of current inmates using the California Department of Corrections and Rehabilitation 13 Inmate Locator website. (https://inmatelocator.cdcr.ca.gov). Title 28 U.S.C. § 2254 empowers 14 the Court to “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of 15 the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The “in custody” requirement is jurisdictional. Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). A habeas petitioner 16 is not “in custody” after the sentence imposed for the conviction is “fully expired.” Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). A petitioner on parole, however, 17 satisfies the “in custody” requirement because parole restrictions “significantly restrain [a] 18 petitioner’s liberty to do those things which in this country free men are entitled to do.” Dow v. Circuit Court of First Circuit Through Huddy, 995 F.2d 922, 923 (9th Cir. 1993) (citation omitted). 19 Here, while it appears that petitioner is no longer in prison, it is not clear whether he is on parole. If he was on parole when he filed the instant Petition, he is considered “in custody” under Section 20 2254(a). If he was not on parole at that time, it appears that his 1993 conviction would then be fully expired and the Court would lack jurisdiction over the Petition on the additional basis that 21 petitioner was not in custody when he initiated this action. 22 5 Petitioner is again advised that if he wishes to make a successive habeas application, 23 he must file a “Motion for Order Authorizing District Court to Consider Second or Successive Petition Pursuant to 28 U.S.C. § 2244(b)(3)(A)” directly with the Ninth Circuit Court of 24 Appeals. Until the Ninth Circuit issues such an order, any direct or implied request for a second or successive petition for writ of habeas corpus is barred by § 2244(b) and must be 25 dismissed without prejudice to petitioner’s right to seek authorization from the Ninth Circuit 26 to file the petition. If petitioner obtains permission from the Ninth Circuit Court of Appeals to file a 27 successive petition, he should file a new petition for writ of habeas corpus. He should not file an amended petition in this action or use the case number from this action because the 28 1 lil. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that the Petition is dismissed without prejudice as 4] successive. 5 “0 _ 6| DATED: September 10, 2019 (ty, 4 AMLL HONORABLi: PERCY ANDERSON 7 UNITED STAIES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 | petition a new case number.