David W. Sconce v. Patrick Covello

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA Case No. 2:21-cv-07067-ODW-PD DAVID SCONCE, ORDER DISMISSING SECOND OR Petitioner, SUCCESSIVE HABEAS CORPUS PETITION AND DENYING v. CERTIFICATE OF APPEALABILITY PATRICK COVELLO, Warden, Respondent.

Before the Court is Petitioner’s fourth attempt to challenge his April 1997 plea to conspiracy to commit murder and lifetime probation sentence. [See Dkt. No. 1.] The first habeas petition challenging the plea proceedings was denied and dismissed with prejudice after the Court reached its merits. See Sconce v. California, Case No. 2:14-cv-2447-ODW-JC (C.D. Cal. 2018), Dkt. No. 78, 2018 U.S. Dist. LEXIS 56057, report and recommendation adopted, 2018 U.S. Dist. LEXIS 56070. Petitioner voluntarily dismissed his second habeas petition in February 2021, after this Court issued a Report and Recommendation that it was second or successive. Sconce v. Covello, Case No. 2:20-cv-01846-ODW-PD (C.D. Cal.), Dkt. Nos. 22, 27, 28, 2020 U.S. Dist. LEXIS 246316, at *10-*12, 2021 U.S. Dist. LEXIS 26063, at *2. In moving to dismiss the petition voluntarily, Petitioner stated he would seek authorization from the Ninth Circuit to file a second or successive petition in this Court. Id., Dkt. No. 27 at 1. Petitioner did not file such a motion in the Ninth Circuit. He did file another habeas petition in this Court on June 11, 2021. Sconce v. Covello, Case No. 2:21-cv-04872-ODW-PD (C.D. Cal. 2021), Dkt. Nos. 4-5. The third habeas petition was dismissed as second or successive on August 11, 2021, and referred to the Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a) as an application for authorization to file a second or successive petition. Id., Dkt. No. 6, 2021 U.S. Dist. LEXIS 151192. As of the date of this Order, that application is pending. See Sconce v. Covello, Case No. 21-71252 (2021). The instant Petition is also second or successive and is subject to dismissal.2 Absent an order from the Ninth Circuit, Petitioner may not bring another habeas corpus petition in this Court challenging the 1997 conviction and sentence. See 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 157 (2007) (holding district court lacks jurisdiction to consider the merits of a second or successive petition absent prior authorization from the circuit court). For that reason, the Petition is dismissed without prejudice to 1 The procedural history of Petitioner’s state criminal matter is detailed in the 2018 Report and Recommendation that was adopted by this Court. Sconce, Case No. 2:14-cv-2447-ODW-JC, Dkt. No. 78 at 3-20, 2018 U.S. Dist. LEXIS 56057, at *2-*25. 2 The Petition challenges the 1997 proceedings by raising a single claim that the state court misinterpreted the District Court’s 1997 order granting the writ of habeas corpus when it sentenced Petitioner to lifetime probation. [Dkt. No. 1 at 11.] Petitioner seeking authorization from the Court of Appeals. In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has considered whether 2 certificate of appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2) (“A certificate of appealability may issue... onlyif... [there is] a substantial showing of the denial of a constitutional right”); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 587 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (A “substantial showing... includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues

W presented were ‘adequate to deserve encouragement to proceed further.”’) (citation omitted). In this matter, Petitioner has not made a substantial

showing of the denial of a constitutional right. Accordingly, the Court

concludes that a certificate of appealability is unwarranted, and a certificate of appealability is denied. IT 1S SO ORDERED. ° : Dated: September 17, 2021 lta” HON. OTIS D. WRIGHT II 2] UNITED STATES DISTRICT JUDGE Presented by: Pelawer Mena hoe_ PATRICIA DONAHUE 9¢ | UNITED STATES MAGISTRATE JUDGE