David Murray v. Koenig

• Court: District Court, C.D. California
• Decided: March 25, 2021
• Docket: 2:21-cv-02513
• Status: Unknown

Opinion

1 2 3 4 JS-6 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 11 12 13 DAVID MURRAY, ) Case No. CV 21-02513-PSG (AS) ) 14 Petitioner, ) ORDER OF DISMISSAL ) 15 ) v. ) 16 ) KOENIG, ) 17 ) Respondent. ) 18 ) 19 20 BACKGROUND 21 22 On March 22, 2021, David Murray (“Petitioner”), a California 23 state prisoner proceeding pro se, filed a Petition for Writ of 24 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 25 § 2254 (“Petition”). (Dkt. No. 1). Petitioner challenges his 2008 26 convictions for oral copulation by force, rape by force, second 27 degree robbery, and sodomy by rape, in Los Angeles County Superior 28 1 Court (Case No. BA267040).1 2 3 Petitioner alleges the following claims for federal habeas 4 relief: (1) The trial court failed to follow state law regarding 5 Petitioner’s “offer of proof to impeach a witness” and “ignored 6 [the] the prosecutor’s and defense counsel’s attempts to uncover 7 relevant facts to impeach a second witness,” in violation of 8 Petitioner’s right to due process, Petitioner’s Sixth Amendment 9 right to confront witnesses, and Petitioner’s Fourteenth Amendment 10 right to equal protection; and (2) The California Court of Appeal 11 “unreasonably assumed non-record facts to deny relief in its 12 Opinion,” in violation of Petitioner’s federal constitutional 13 rights to due process and equal protection. (See Petition at 5-6, 14 Memorandum at 1-9). 15 16 On February 7, 2012, Petitioner filed a Petition for Writ of 17 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 18 § 2254, challenging the same convictions. See David Murray v. 19 Leland McEwen, Case No. CV 12-01022-PSG (AS); Dkt. Nos. 1, 19 20 (“the prior habeas action”). On April 15, 2014, the district 21 court issued an Order and Judgment denying that habeas petition 22 with prejudice, in accordance with the findings, conclusions and 23 recommendations of the Magistrate Judge, and denied a certificate 24 25 1 The Court takes judicial notice of Petitioner’s 26 previous federal habeas case –- David Murray v. Leland McEwen, Case No. CV 12-01022-PSG (AS). Petitioner was convicted of seven 27 counts of oral copulation by force, five counts of rape by force, three counts of second degree robbery and four counts of sodomy 28 by force. Id., Dkt. Nos. 47, 56. 2 1 of appealability. (Id.; Dkt. Nos. 56-58). On December 15, 2016, 2 the Ninth Circuit Court of Appeals affirmed the district court’s 3 denial of that habeas petition. (Id.; Dkt. No. 69). 4 5 DISCUSSION 6 7 The Antiterrorism and Effective Death Penalty Act of 1996 8 (“AEDPA”), enacted on April 24, 1996, provides in pertinent part 9 that: 10 (a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus 11 to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears 12 that the legality of such detention has been determined by a judge or court of the United States on a prior 13 application for a writ of habeas corpus, except as provided in §2255. 14 (b)(1) A claim presented in a second or successive 15 habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. 16 (2) A claim presented in a second or successive 17 habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed 18 unless-- 19 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to 20 cases on collateral review by the Supreme Court, that was previously unavailable; or 21 (B)(i) the factual predicate for the claim could 22 not have been discovered previously through the exercise of due diligence; and 23 (ii) the facts underlying the claim, if proven and 24 viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence 25 that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the 26 underlying offense. 27 (3)(A) Before a second or successive application permitted by this section is filed in the district 28 court, the applicant shall move in the appropriate court 3 1 of appeals for an order authorizing the district court to consider the application. 2 (B) A motion in the court of appeals for an order 3 authorizing the district court to consider a second or successive application shall be determined by a three- 4 judge panel of the court of appeals. 5 (C) The court of appeals may authorize the filing of a second or successive application only if it 6 determines that the application makes a prima facie showing that the application satisfies the requirements 7 of this subsection. 8 (D) The court of appeals shall grant or deny the authorization to file a second or successive application 9 not later than 30 days after the filing of the motion. 10 (E) The grant or denial of an authorization by a court of appeals to file a second or successive 11 application shall not be appealable and shall not be the subject of a Petition for Rehearing or for a Writ of 12 Certiorari. 13 (4) A district court shall dismiss any claim presented in a second or successive application that the 14 court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the 15 requirements of this section. 28 U.S.C. § 2244. 16 28 U.S.C. § 2244(b)(3) “creates a ‘gatekeeping’ mechanism for 17 the consideration of second or successive applications in district 18 court. The prospective applicant must file in the court of 19 appeals a motion for leave to file a second or successive habeas 20 application in the district court. § 2244(b)(3)(A).” Felker v. 21 Turpin, 518 U.S. 651, 657 (1996). 22 23 The instant Petition, filed on March 22, 2021, and the prior 24 habeas action challenge Petitioner’s custody pursuant to the same 25 2008 judgment entered by the Los Angeles County Superior Court. 26 Accordingly, the instant Petition is a second or successive habeas 27 petition for purposes of 28 U.S.C. § 2244. Therefore, Petitioner 28 4 1 was required to obtain authorization from the Court of Appeals 2 before filing the present Petition. See 28 U.S.C. §2244(b)(3)(A). 3 No such authorization has been obtained in this case. 4 5 Moreover, the claims asserted in the instant Petition do not 6 appear to fall within the exceptions to the bar on second or 7 successive petitions because the asserted claims are not based on 8 newly discovered facts or a “a new rule of constitutional law, 9 made retroactive to cases on collateral review by the Supreme 10 Court, that was previously unavailable.” Tyler v. Cain, 533 U.S. 11 656, 662 (2001). However, this determination must be made by the 12 United States Court of Appeals upon a petitioner’s motion for an 13 order authorizing the district court to consider his second or 14 successive petition. 28 U.S.C. § 2244(b); see also Burton v. 15 Stewart, 549 U.S. 147, 157 (2007)(where the petitioner did not 16 receive authorization from the Court of Appeals before filing 17 second or successive petition, “the District Court was without 18 jurisdiction to entertain [the petition]”); Barapind v. Reno, 225 19 F.3d 1100, 1111 (9th Cir. 2000)(“[T]he prior-appellate-review 20 mechanism set forth in § 2244(b) requires the permission of the 21 court of appeals before ‘a second or successive habeas application 22 under § 2254’ may be commenced.”). 23 24 Because Petitioner has not obtained authorization from the 25 Ninth Circuit Court of Appeals, this Court cannot entertain the 26 present Petition. See Burton, 549 U.S. at 157. 27 28 5 1 ORDER 2 3 Accordingly, IT IS ORDERED that the Petition be dismissed 4] without prejudice. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 || DATED: March 25, 2021 Ee ffl A 10 — PHILIP S. GUTIERREZ 1 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28