2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 COREY SULLIVAN, Case No. 2:20-cv-00865-DOC (GJS)
12 Petitioner, ORDER: DISMISSING PETITION; DENYING CERTIFICATE OF 13 v. APPEALABILITY; AND REFERRING PETITION 14 C. PFEIFFER, PURSUANT TO NINTH CIRCUIT RULE 22-3(a) 15 Respondent.
16 17 On April 5, 2014, Petitioner filed a 28 U.S.C. § 2254 habeas petition in this 18 District in Case No. 2:14-cv-08605-AG (GJS) (the “First Petition”). The First 19 Petition challenged Petitioner’s 2013 conviction sustained in Los Angeles County 20 Superior Court Case No. BA374465 following a nolo contendere plea and his 21 related sentence (collectively, the “State Conviction”). The First Petition raised five 22 claims: (1) appellate counsel provided ineffective assistance; (2) the trial court 23 abused its discretion in failing to sever Petitioner’s case from those of his co- 24 defendants; (3) the trial court violated Petitioner’s right to a jury trial with respect to 25 the gang enhancement imposed, which Petitioner did not admit and a jury did not 26 find; (4) trial counsel provided ineffective assistance by failing to investigate, which 27 caused Petitioner to “unnecessarily” plead guilty; and (5) the trial court failed to 28 take a proper waiver of Petitioner’s constitutional rights in connection with the 2 United States Magistrate Judge issued a Report and Recommendation in which she 3 recommended a denial on the merits and on a procedural ground,1 and on October 4 30, 2016, the Court accepted the Report and Recommendation, denied and 5 dismissed the First Petition with prejudice, and Judgment was entered. Petitioner 6 did not appeal.2 7 Over three years passed. On January 28, 2000, Petitioner commenced this 8 habeas action through a 28 U.S.C. § 2254 petition (Dkt. 1, “Petition”). The instant 9 Petition again challenges Petitioner’s State Conviction, this time through a single 10 Confrontation Clause-based claim.3 Petitioner contends that the gang enhancement 11 imposed in connection with the State Conviction is “illegal,” because when the gang 12 expert testified at the preliminary hearing, he relied on hearsay contained in prior 13 police reports he did not author. Petitioner contends that, under Crawford v. 14 Washington, 541 U.S. 36 (2004), this reliance on testimonial hearsay was improper 15 under the Confrontation Clause, and thus, the gang expert’s testimony was 16 insufficient to support the gang enhancement imposed. Petitioner argues at some 17 length that this alleged Confrontation Clause error was not harmless. Petitioner also 18 cites to recently-passed California Assembly Bill No. 1618, which has been enacted 19 as California Penal Code § 1016.8. This new statute, at the relevant subparagraph 20 (b) on which Petitioner relies, provides as follows: “A provision of a plea bargain 21 22 1 The Magistrate Judge, and subsequently the Court, found that Grounds Two and Four of the First Petition were barred by the doctrine set forth in Tollett v. Henderson, 411 U.S. 258 23 (1973).
24 2 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has taken judicial notice of its records and files, as well as of the Ninth Circuit dockets available electronically through the 25 PACER system. 26 3 While Petitioner utilized both the “Ground One” and “Ground Two” sections of the 27 petition form to set forth his habeas claim, it is plain – based on both his argument attached to the form petition and that set forth in his state habeas petition – that he raises a single Confrontation 28 Clause claim. 2 2 enactments, initiatives, appellate decisions, or other changes in the law that may 3 retroactively apply after the date of the plea is void as against public policy.” 4 Petitioner reasons that because of this new statutory provision, he is entitled to rely 5 upon a January 23, 2018 decision of the California Court of Appeal (People v. 6 Martinez, No. E066299, Fourth Appellate District) to support his Crawford claim. 7 The dockets for the Ninth Circuit show that Petitioner has not sought permission 8 from the United States Court of Appeals for the Ninth Circuit to file the instant 9 Petition. 10 11 DISCUSSION 12 State habeas petitioners generally may file only one federal habeas petition 13 challenging a particular state conviction and/or sentence. See, e.g., 28 U.S.C. § 14 2244(b)(1) (courts must dismiss a claim presented in a second or successive petition 15 when that claim was presented in a prior petition) and § 2244(b)(2) (with several 16 exceptions, courts must dismiss a claim presented in a second or successive petition 17 when that claim was not presented in a prior petition). “A habeas petition is second 18 or successive . . . if it raises claims that were or could have been adjudicated on the 19 merits” in an earlier Section 2254 petition. McNabb v. Yates, 576 F.3d 1028, 1029 20 (9th Cir. 2009). 21 Even when Section 2244(b) provides a basis for pursuing a second or successive 22 Section 2254 habeas petition, state habeas petitioners seeking relief in this District 23 Court must first obtain authorization from the Ninth Circuit before filing any such 24 second or successive petition. 28 U.S.C. § 2244(b)(3). The Ninth Circuit “may 25 authorize the filing of the second or successive [petition] only if it presents a claim 26 not previously raised that satisfies one of the two grounds articulated in § 27 2242(b)(2).” Burton v. Stewart, 549 U.S. 147, 152 (2007). 28 The First Petition raised federal constitutional claims challenging the State 3 2 Petition again challenges that same State Conviction and its related sentence and 3 thus, on its face, is second or successive within the meaning of Section 2244(b). 4 While Petitioner argues that a 2018 state appellate court decision supports his 5 Confrontation Clause claim set forth in the Petition, the claim itself is not a new one. 6 As argued in the state court and here, Petitioner’s claim is one brought under and 7 premised on Crawford, which was decided many years before the State Conviction 8 occurred. Petitioner’s secondary argument – that insufficient evidence supported 9 the gang enhancement allegation, because the gang expert’s testimony improperly 10 was based on hearsay – plainly is one that could have been raised in an appeal of the 11 State Conviction and thus in the First Petition. Indeed, as Petitioner notes, his trial 12 counsel moved (unsuccessfully) to dismiss the gang enhancement allegation on the 13 basis that the gang expert’s preliminary hearing testimony was insufficient to 14 support the enhancement, because the testimony rested on hearsay. [Petition at ECF 15 ## 29, 59.] 16 Whether or not the claim alleged in the Petition may, as a prima facie matter, 17 satisfy the requisites of 28 U.S.C. § 2244
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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 COREY SULLIVAN, Case No. 2:20-cv-00865-DOC (GJS)
12 Petitioner, ORDER: DISMISSING PETITION; DENYING CERTIFICATE OF 13 v. APPEALABILITY; AND REFERRING PETITION 14 C. PFEIFFER, PURSUANT TO NINTH CIRCUIT RULE 22-3(a) 15 Respondent.
16 17 On April 5, 2014, Petitioner filed a 28 U.S.C. § 2254 habeas petition in this 18 District in Case No. 2:14-cv-08605-AG (GJS) (the “First Petition”). The First 19 Petition challenged Petitioner’s 2013 conviction sustained in Los Angeles County 20 Superior Court Case No. BA374465 following a nolo contendere plea and his 21 related sentence (collectively, the “State Conviction”). The First Petition raised five 22 claims: (1) appellate counsel provided ineffective assistance; (2) the trial court 23 abused its discretion in failing to sever Petitioner’s case from those of his co- 24 defendants; (3) the trial court violated Petitioner’s right to a jury trial with respect to 25 the gang enhancement imposed, which Petitioner did not admit and a jury did not 26 find; (4) trial counsel provided ineffective assistance by failing to investigate, which 27 caused Petitioner to “unnecessarily” plead guilty; and (5) the trial court failed to 28 take a proper waiver of Petitioner’s constitutional rights in connection with the 2 United States Magistrate Judge issued a Report and Recommendation in which she 3 recommended a denial on the merits and on a procedural ground,1 and on October 4 30, 2016, the Court accepted the Report and Recommendation, denied and 5 dismissed the First Petition with prejudice, and Judgment was entered. Petitioner 6 did not appeal.2 7 Over three years passed. On January 28, 2000, Petitioner commenced this 8 habeas action through a 28 U.S.C. § 2254 petition (Dkt. 1, “Petition”). The instant 9 Petition again challenges Petitioner’s State Conviction, this time through a single 10 Confrontation Clause-based claim.3 Petitioner contends that the gang enhancement 11 imposed in connection with the State Conviction is “illegal,” because when the gang 12 expert testified at the preliminary hearing, he relied on hearsay contained in prior 13 police reports he did not author. Petitioner contends that, under Crawford v. 14 Washington, 541 U.S. 36 (2004), this reliance on testimonial hearsay was improper 15 under the Confrontation Clause, and thus, the gang expert’s testimony was 16 insufficient to support the gang enhancement imposed. Petitioner argues at some 17 length that this alleged Confrontation Clause error was not harmless. Petitioner also 18 cites to recently-passed California Assembly Bill No. 1618, which has been enacted 19 as California Penal Code § 1016.8. This new statute, at the relevant subparagraph 20 (b) on which Petitioner relies, provides as follows: “A provision of a plea bargain 21 22 1 The Magistrate Judge, and subsequently the Court, found that Grounds Two and Four of the First Petition were barred by the doctrine set forth in Tollett v. Henderson, 411 U.S. 258 23 (1973).
24 2 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has taken judicial notice of its records and files, as well as of the Ninth Circuit dockets available electronically through the 25 PACER system. 26 3 While Petitioner utilized both the “Ground One” and “Ground Two” sections of the 27 petition form to set forth his habeas claim, it is plain – based on both his argument attached to the form petition and that set forth in his state habeas petition – that he raises a single Confrontation 28 Clause claim. 2 2 enactments, initiatives, appellate decisions, or other changes in the law that may 3 retroactively apply after the date of the plea is void as against public policy.” 4 Petitioner reasons that because of this new statutory provision, he is entitled to rely 5 upon a January 23, 2018 decision of the California Court of Appeal (People v. 6 Martinez, No. E066299, Fourth Appellate District) to support his Crawford claim. 7 The dockets for the Ninth Circuit show that Petitioner has not sought permission 8 from the United States Court of Appeals for the Ninth Circuit to file the instant 9 Petition. 10 11 DISCUSSION 12 State habeas petitioners generally may file only one federal habeas petition 13 challenging a particular state conviction and/or sentence. See, e.g., 28 U.S.C. § 14 2244(b)(1) (courts must dismiss a claim presented in a second or successive petition 15 when that claim was presented in a prior petition) and § 2244(b)(2) (with several 16 exceptions, courts must dismiss a claim presented in a second or successive petition 17 when that claim was not presented in a prior petition). “A habeas petition is second 18 or successive . . . if it raises claims that were or could have been adjudicated on the 19 merits” in an earlier Section 2254 petition. McNabb v. Yates, 576 F.3d 1028, 1029 20 (9th Cir. 2009). 21 Even when Section 2244(b) provides a basis for pursuing a second or successive 22 Section 2254 habeas petition, state habeas petitioners seeking relief in this District 23 Court must first obtain authorization from the Ninth Circuit before filing any such 24 second or successive petition. 28 U.S.C. § 2244(b)(3). The Ninth Circuit “may 25 authorize the filing of the second or successive [petition] only if it presents a claim 26 not previously raised that satisfies one of the two grounds articulated in § 27 2242(b)(2).” Burton v. Stewart, 549 U.S. 147, 152 (2007). 28 The First Petition raised federal constitutional claims challenging the State 3 2 Petition again challenges that same State Conviction and its related sentence and 3 thus, on its face, is second or successive within the meaning of Section 2244(b). 4 While Petitioner argues that a 2018 state appellate court decision supports his 5 Confrontation Clause claim set forth in the Petition, the claim itself is not a new one. 6 As argued in the state court and here, Petitioner’s claim is one brought under and 7 premised on Crawford, which was decided many years before the State Conviction 8 occurred. Petitioner’s secondary argument – that insufficient evidence supported 9 the gang enhancement allegation, because the gang expert’s testimony improperly 10 was based on hearsay – plainly is one that could have been raised in an appeal of the 11 State Conviction and thus in the First Petition. Indeed, as Petitioner notes, his trial 12 counsel moved (unsuccessfully) to dismiss the gang enhancement allegation on the 13 basis that the gang expert’s preliminary hearing testimony was insufficient to 14 support the enhancement, because the testimony rested on hearsay. [Petition at ECF 15 ## 29, 59.] 16 Whether or not the claim alleged in the Petition may, as a prima facie matter, 17 satisfy the requisites of 28 U.S.C. § 2244(b)(2) is a question that must be presented 18 to and resolved by the Ninth Circuit, not this District Court.4 Petitioner, however, 19 has not obtained permission from the Ninth Circuit to bring a second or successive 20 Section 2254 petition raising the claims alleged in the Petition. This Court therefore 21 lacks jurisdiction to consider the Petition. 28 U.S.C. § 2244(b); see also Burton, 22 549 U.S. at 157 (district court lacks jurisdiction to consider the merits of a second or 23
24 4 The Court notes that the claim alleged in the Petition appears to have numerous problems in addition to the Section 2244(b) issue. Petitioner overlooks entirely the critical fact that he 25 admitted the truth of the gang enhancement allegation at the time of his plea. [See First Petition 26 action, Dkt. 1 at 44-45 (plea hearing transcript), and Dkt. 13 at 11.] Any alleged issue with respect to the gang expert’s preliminary hearing testimony, thus, would seem to be irrelevant. The instant 27 claim also appears to be substantially untimely and to be barred by the Tollett doctrine. However, as the Court lacks jurisdiction to consider the merits of the Petition, it cannot, and therefore does 28 not, resolve these apparent bars to the relief sought. 4 1 || successive petition absent prior authorization from the circuit court). 2 Accordingly, IT IS ORDERED that: the Petition is DISMISSED; and Judgment 3 || shall be entered dismissing the Petition without prejudice. 4 In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in 5 || the United States District Courts, the Court has considered whether a certificate of 6 || appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. 7 || McDaniel, 120 S. Ct. 1595, 1604 (2000). The Court concludes that a certificate of 8 || appealability is unwarranted, and thus, a certificate of appealability is DENIED. 9 IT IS FURTHER ORDERED that the Clerk of the Court shall refer the Petition 10 || to the Ninth Circuit pursuant to Ninth Circuit Rule 22—3(a). 11 IT IS SO ORDERED. 12 13 || DATED: February 12, 2020 Ahywit 2 (grtiv DAVIDO.CARTER 15 UNITED STATES DISTRICT JUDGE 16 17 || PRESENTED BY: 18 19 by A 99 || GAIL J. STANDISH 5 UNITED STATES MAGISTRATE JUDGE
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