1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 CARLOS CORTES ESCAMILLA, ) Case No. 2:26-cv-00100-WLH-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE WHY 13 v. ) THE PETITION SHOULD NOT ) 14 ANDRE GONZALES, Warden, ) BE DISMISSED ) ) 15 Respondent. ) 16 17 I. 18 INTRODUCTION 19 On January 2, 2026, the Court received from Carlos Cortes Escamilla 20 (“Petitioner”), a state prisoner proceeding pro se and without paying the filing 21 fee or seeking to proceed in forma pauperis, a Petition for Writ of Habeas 22 Corpus by a Person in State Custody under 28 U.S.C. § 2254, seeking to 23 challenge his 1993 state court conviction in Case No. VA014021. Dkt. 1 24 (“Pet.” or “Petition”). 25 As Petitioner concedes, he previously sought federal habeas relief 26 regarding his 1993 conviction. See Pet. at 31 (CM/ECF pagination). Federal 27 records available electronically reflect Petitioner has previously filed at least 28 two federal habeas petitions challenging the same 1993 Los Angeles County 1 Superior Court conviction. See Escamilla v. Prunty, et al., Case No. 2:96-cv- 2 06270-RMT-CW (C.D. Cal.) (“First Action”); Escamilla v. Newton, et al., 3 Case No. 2:21-cv-01851-CJC-PLA (C.D. Cal.) (“Second Action”).1 The First 4 Action was filed on September 9, 1996 and dismissed with prejudice on June 5 22, 1998. First Action, Dkt. 1, 23. Both the district court and Ninth Circuit 6 Court of Appeals (“Ninth Circuit”) denied certificates of appealability. Id., 7 Dkt. 27, 34. The Second Action was filed on February 26, 2021 and dismissed 8 on April 1, 2021 with prejudice as time barred and for failure to state a 9 cognizable claim. Second Action, Dkt. 1, 6. Again, the district court and Ninth 10 Circuit denied certificates of appealability. Id., Dkt. 6, 10. 11 District courts are required to “promptly examine” all federal habeas 12 petitions brought under 28 U.S.C. § 2254 and, “[i]f it plainly appears from the 13 petition and any attached exhibits that the petitioner is not entitled to relief,” 14 the “judge must dismiss the petition[.]” Rule 4, Rules Governing Section 2254 15 Cases in the United States District Courts; Mayle v. Felix, 545 U.S. 644, 656 16 (2005). For the reasons set forth below, it appears the Court lacks jurisdiction 17 to consider the Petition as it constitutes a second or successive petition under 18 28 U.S.C. § 2244(b), rending it subject to dismissal. 19 II. 20 DISCUSSION 21 The Antiterrorism and Effective Death Penalty Act of 1996 (the 22 “AEDPA”) “greatly restricts the power of federal courts to award relief to state 23 prisoners who file second or successive habeas corpus applications.” Tyler v. 24
25 1 Under Fed. R. Evid. 201, the Court takes judicial notice of Petitioner’s prior filings in federal court. See United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th 26 Cir. 2018) (“A court may take judicial notice of undisputed matters of public record, 27 which may include court records available through [the Public Access to Court Electronic Records].”); Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking 28 judicial notice of opinion and briefs filed in another proceeding). 1 Cain, 533 U.S. 656, 661 (2001). Title 28, United States Code, Section 2244(b) 2 provides, in pertinent part, as follows: 3 (1) A claim presented in a second or successive habeas 4 corpus application under section 2254 that was presented in a prior 5 application shall be dismissed. 6 (2) A claim presented in a second or successive habeas 7 corpus application under section 2254 that was not presented in a 8 prior application shall be dismissed unless– 9 (A) the applicant shows that the claim relies on a new 10 rule of constitutional law, made retroactive to cases on 11 collateral review by the Supreme Court, that was previously 12 unavailable; or 13 (B)(i) the factual predicate for the claim could not have 14 been discovered previously through the exercise of due 15 diligence; and 16 (ii) the facts underlying the claim, if proven and 17 viewed in light of the evidence as a whole, would be 18 sufficient to establish by clear and convincing evidence that, 19 but for constitutional error, no reasonable factfinder would 20 have found the applicant guilty of the underlying offense. 21 (3)(A) Before a second or successive application permitted 22 by this section is filed in the district court, the applicant shall move 23 in the appropriate court of appeals for an order authorizing the 24 district court to consider the application. 25 A lack of authorization from the appropriate appellate court to file a second or 26 successive habeas petition deprives the district court of jurisdiction to consider 27 the petition. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (per curiam); 28 Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam). 1 Here, Petitioner challenges the same 1993 conviction that he challenged 2 in the First and Second Actions. The First Action was dismissed with prejudice 3 and the Second Action was dismissed with prejudice as untimely and for 4 failure to state a claim. As such, the instant Petition appears to constitute a 5 second and/or successive petition. See McNabb v. Yates, 576 F.3d 1028, 1030 6 (9th Cir. 2009) (holding that dismissal of a section 2254 habeas petition as 7 untimely renders subsequent petitions second or successive for purposes of the 8 AEDPA because “dismissal of a first habeas petition for untimeliness presents 9 a ‘permanent and incurable’ bar to federal review of the underlying claims”); 10 Garcia-Mesa v. United States, 2022 WL 2304230, at *1 (9th Cir. June 27, 11 2022) (observing that because petitioner’s first habeas petition was denied as 12 untimely, which is a merits determination, his current petition challenging the 13 same conviction was second and/or successive). Petitioner must obtain 14 permission from the Ninth Circuit before this Court can adjudicate the issues 15 raised in the Petition. Petitioner has not presented, and this Court has not 16 independently located, any documentation indicating the Ninth Circuit has 17 issued an order authorizing the district court to consider the Petition. 18 Petitioner’s “actual innocence” argument based on 2013 DNA testing 19 does not create an exception to Section 2244(b)’s requirement of first obtaining 20 authorization to file a second or successive petition. See Gage v. Chappell, 793 21 F.3d 1159, 1167-69 (9th Cir. 2015) (explaining the actual innocence exception 22 in Schlup v. Delo, 513 U.S. 298 (1995) does not excuse a petition from the 23 limitations on second or successive petitions); Johnson v. Diaz, 2020 WL 24 6381669, at *2 (C.D. Cal. Oct. 30, 2020). As such, the Court appears to lack 25 jurisdiction over the Petition, rendering the Petition subject to dismissal.2 26
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 CARLOS CORTES ESCAMILLA, ) Case No. 2:26-cv-00100-WLH-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE WHY 13 v. ) THE PETITION SHOULD NOT ) 14 ANDRE GONZALES, Warden, ) BE DISMISSED ) ) 15 Respondent. ) 16 17 I. 18 INTRODUCTION 19 On January 2, 2026, the Court received from Carlos Cortes Escamilla 20 (“Petitioner”), a state prisoner proceeding pro se and without paying the filing 21 fee or seeking to proceed in forma pauperis, a Petition for Writ of Habeas 22 Corpus by a Person in State Custody under 28 U.S.C. § 2254, seeking to 23 challenge his 1993 state court conviction in Case No. VA014021. Dkt. 1 24 (“Pet.” or “Petition”). 25 As Petitioner concedes, he previously sought federal habeas relief 26 regarding his 1993 conviction. See Pet. at 31 (CM/ECF pagination). Federal 27 records available electronically reflect Petitioner has previously filed at least 28 two federal habeas petitions challenging the same 1993 Los Angeles County 1 Superior Court conviction. See Escamilla v. Prunty, et al., Case No. 2:96-cv- 2 06270-RMT-CW (C.D. Cal.) (“First Action”); Escamilla v. Newton, et al., 3 Case No. 2:21-cv-01851-CJC-PLA (C.D. Cal.) (“Second Action”).1 The First 4 Action was filed on September 9, 1996 and dismissed with prejudice on June 5 22, 1998. First Action, Dkt. 1, 23. Both the district court and Ninth Circuit 6 Court of Appeals (“Ninth Circuit”) denied certificates of appealability. Id., 7 Dkt. 27, 34. The Second Action was filed on February 26, 2021 and dismissed 8 on April 1, 2021 with prejudice as time barred and for failure to state a 9 cognizable claim. Second Action, Dkt. 1, 6. Again, the district court and Ninth 10 Circuit denied certificates of appealability. Id., Dkt. 6, 10. 11 District courts are required to “promptly examine” all federal habeas 12 petitions brought under 28 U.S.C. § 2254 and, “[i]f it plainly appears from the 13 petition and any attached exhibits that the petitioner is not entitled to relief,” 14 the “judge must dismiss the petition[.]” Rule 4, Rules Governing Section 2254 15 Cases in the United States District Courts; Mayle v. Felix, 545 U.S. 644, 656 16 (2005). For the reasons set forth below, it appears the Court lacks jurisdiction 17 to consider the Petition as it constitutes a second or successive petition under 18 28 U.S.C. § 2244(b), rending it subject to dismissal. 19 II. 20 DISCUSSION 21 The Antiterrorism and Effective Death Penalty Act of 1996 (the 22 “AEDPA”) “greatly restricts the power of federal courts to award relief to state 23 prisoners who file second or successive habeas corpus applications.” Tyler v. 24
25 1 Under Fed. R. Evid. 201, the Court takes judicial notice of Petitioner’s prior filings in federal court. See United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th 26 Cir. 2018) (“A court may take judicial notice of undisputed matters of public record, 27 which may include court records available through [the Public Access to Court Electronic Records].”); Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking 28 judicial notice of opinion and briefs filed in another proceeding). 1 Cain, 533 U.S. 656, 661 (2001). Title 28, United States Code, Section 2244(b) 2 provides, in pertinent part, as follows: 3 (1) A claim presented in a second or successive habeas 4 corpus application under section 2254 that was presented in a prior 5 application shall be dismissed. 6 (2) A claim presented in a second or successive habeas 7 corpus application under section 2254 that was not presented in a 8 prior application shall be dismissed unless– 9 (A) the applicant shows that the claim relies on a new 10 rule of constitutional law, made retroactive to cases on 11 collateral review by the Supreme Court, that was previously 12 unavailable; or 13 (B)(i) the factual predicate for the claim could not have 14 been discovered previously through the exercise of due 15 diligence; and 16 (ii) the facts underlying the claim, if proven and 17 viewed in light of the evidence as a whole, would be 18 sufficient to establish by clear and convincing evidence that, 19 but for constitutional error, no reasonable factfinder would 20 have found the applicant guilty of the underlying offense. 21 (3)(A) Before a second or successive application permitted 22 by this section is filed in the district court, the applicant shall move 23 in the appropriate court of appeals for an order authorizing the 24 district court to consider the application. 25 A lack of authorization from the appropriate appellate court to file a second or 26 successive habeas petition deprives the district court of jurisdiction to consider 27 the petition. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (per curiam); 28 Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam). 1 Here, Petitioner challenges the same 1993 conviction that he challenged 2 in the First and Second Actions. The First Action was dismissed with prejudice 3 and the Second Action was dismissed with prejudice as untimely and for 4 failure to state a claim. As such, the instant Petition appears to constitute a 5 second and/or successive petition. See McNabb v. Yates, 576 F.3d 1028, 1030 6 (9th Cir. 2009) (holding that dismissal of a section 2254 habeas petition as 7 untimely renders subsequent petitions second or successive for purposes of the 8 AEDPA because “dismissal of a first habeas petition for untimeliness presents 9 a ‘permanent and incurable’ bar to federal review of the underlying claims”); 10 Garcia-Mesa v. United States, 2022 WL 2304230, at *1 (9th Cir. June 27, 11 2022) (observing that because petitioner’s first habeas petition was denied as 12 untimely, which is a merits determination, his current petition challenging the 13 same conviction was second and/or successive). Petitioner must obtain 14 permission from the Ninth Circuit before this Court can adjudicate the issues 15 raised in the Petition. Petitioner has not presented, and this Court has not 16 independently located, any documentation indicating the Ninth Circuit has 17 issued an order authorizing the district court to consider the Petition. 18 Petitioner’s “actual innocence” argument based on 2013 DNA testing 19 does not create an exception to Section 2244(b)’s requirement of first obtaining 20 authorization to file a second or successive petition. See Gage v. Chappell, 793 21 F.3d 1159, 1167-69 (9th Cir. 2015) (explaining the actual innocence exception 22 in Schlup v. Delo, 513 U.S. 298 (1995) does not excuse a petition from the 23 limitations on second or successive petitions); Johnson v. Diaz, 2020 WL 24 6381669, at *2 (C.D. Cal. Oct. 30, 2020). As such, the Court appears to lack 25 jurisdiction over the Petition, rendering the Petition subject to dismissal.2 26
27 2 Additionally, although the Court makes no finding at this time, it also appears the Petition is untimely. As noted, the Second Action was dismissed as 28 1 Ii. 2 CONCLUSION AND ORDER 3 For the foregoing reasons, the Petition appears subject to dismissal. 4 || Petitioner is ORDERED TO SHOW CAUSE why this action should not be 5 || dismissed without prejudice by filing a written response by no later than thirty 6 days from the date of this Order explaining that the Petition is not a 7 ||second and/or successive petition or showing that the Ninth Circuit has 8 || authorized review of this Petition. If Petitioner contends the Petition is not a 9 ||second and/or successive petition, Petitioner should clearly explain this and 10 || attach any supporting documents. 1] Alternatively, Petitioner may voluntarily dismiss this action by signing 12 |! and returning the attached Notice of Dismissal under Federal Rule of Civil 13 || Procedure 41(a). The Clerk is directed to provide a Notice of Dismissal form 14 || with this Order. 15 Petitioner is cautioned that a failure to respond timely in compliance 16 || with this Order may result in this action being dismissed for the foregoing 17 |/reasons, for failure to prosecute, and for failure to comply with a Court order. 18 || See Fed. R. Civ. P. 41(b). 19 je de 90 Dated: January 13, 2026 the HN D. EARLY 21 United States Magistrate Judge 22 23 24 25 || untimely. Petitioner now relies on DNA testing, but this evidence is over 10 years old, and contrary to Petitioner’s assertions, this evidence does not appear to 26 “exonerate” him, as the results confirm Petitioner’s DNA was found at the crime 27 ||scene, which Petitioner concedes is consistent with the evidence presented at trial (Pet. at 12). See id., Exh. A. Such evidence appears insufficient to make a convincing 28 showing of actual innocence. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).