1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL DUNSMORE, Case No.: 3:20-cv-1378-JLS-AHG
12 Petitioner, ORDER (1) GRANTING IN PART 13 v. AND DENYING IN PART PETITIONER’S MOTION FOR 14 UNKNOWN, REHEARING AND (2) CLARIFYING 15 Respondent. THIS COURT’S AUGUST 4, 2020 DISMISSAL ORDER 16
17 (ECF Nos. 3, 5) 18 19 On July 17, 2020, Petitioner Darryl Dunsmore, a prisoner proceeding pro se, filed a 20 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 together with a request to 21 proceed in forma pauperis. On August 4, 2020, this Court dismissed the Petition as 22 successive pursuant to § 2244(b)(3)(A). (ECF No. 3.) In its dismissal Order, the Court 23 noted that this was not the first Petition for a Writ of Habeas Corpus that Petitioner had 24 submitted challenging his June 4, 2010 conviction in San Diego Superior Court Case No. 25 SCS 215653. (Id.) Indeed, on May 17, 2013, Petitioner filed a Petition for Writ of Habeas 26 Corpus in Case No. 13-cv-1193-GPC-PCL, in which Petitioner also challenged his 27 conviction in San Diego Superior Court Case No. SCS 215653. On August 10, 2015, this 28 Court denied the petition on the merits. See Dunsmore v. Beard, Case No. 13-cv-1193- 1 GPC-PCL (S.D. Cal. Aug. 10, 2015), Order, ECF No. 115. As such, this Court dismissed 2 Petitioner’s July 17, 2020 Petition as successive, without prejudice to refiling if and when 3 Petitioner obtained an Order from the appropriate court of appeals authorizing the district 4 court to consider a successive petition. (See ECF No. 3 at 2, citing 28 U.S.C. 5 § 2244(b)(3)(A).) 6 MOTION FOR REHEARING 7 On August 24, 2020, Petitioner filed a “Motion for Rehearing,” (“Motion” or 8 “Mot.”) in which he contends the Court improperly dismissed his petition as successive.1 9 (Mot., ECF No. 5.) He argues that this Court erred in dismissing the Petition as successive 10 because he was not challenging his 2010 conviction but rather his resentencing, which 11 Petitioner states was ordered by the California Court of Appeal on October 8, 2019, in case 12 number D074656.2 (See id. at 1.) 13 The Court construes Petitioner’s Motion as one filed pursuant to Federal Rule of 14 Civil Procedure 60(b), under which reconsideration is appropriate only upon a showing of: 15 (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; 16 (3) an adverse party’s fraud, misrepresentation, or other misconduct; (4) a void judgment; 17 (5) a satisfied, released or discharged judgment; or (6) any other reason justifying relief 18 from the operation of the judgment. Fed. R. Civ. P. 60(b). “A motion under Rule 60(b) 19 must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a 20 21 1 On October 26, 2020, Petitioner filed a notice of appeal to the Ninth Circuit Court of Appeals. (ECF 22 No. 6.) As a general rule, a district court is divested of jurisdiction once a notice of appeal has been filed. See Pope v. Sav. Bank of Puget Sound, 850 F.2d 1345, 1347 (9th Cir. 1988). However, the Ninth Circuit 23 has held that a district court may “clarify its original order pursuant to Rule 60(a) despite the notice of appeal.” Morris v. Morgan Stanley & Co., 942 F.2d 648, 655 (9th Cir. 1991). 24
25 2 The Court takes judicial notice of the California Court of Appeal’s October 8, 2019 Opinion ordering the case be remanded to the trial court for resentencing. See People v. Dunsmore, Case No. D074656, 26 2019 WL 4941363 (Cal. Ct. App. Oct. 8, 2019); Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from 27 sources whose accuracy cannot reasonably be questioned.”); Harris v. County of Orange, 682 F.3d 1126, 1131–32 (9th Cir. 2012) (stating a federal court may take judicial notice of “documents on file in federal 28 1 year after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. 2 P. 60(c). 3 On further review of the Petition, it appears that Petitioner is seeking to challenge 4 two different state court orders related to his incarceration. The Court will discuss them 5 separately. 6 I. Claims Related to San Diego Superior Court Case Number SCS 215653 7 On the first page of the Petition, Petitioner asserts that he is challenging his June 4, 8 2010 judgment of conviction in San Diego Superior Court Case No. “SCS 215653.” (See 9 “Pet.,” ECF No. 1 at 1.) He states that he is “overdue for release.” (Id. at 2.) In his first 10 ground for relief, Petitioner contends that his sentence in SCS 215653 constitutes “cruel 11 and unusual punishment.” (Id. at 6.) Specifically, he alleges that on June 4, 2010, the state 12 court “made a finding of fact that Petitioner’s case was a serious crime.” (Id. at 6.) 13 Petitioner argues that “on 6/4/10, neither myself nor counsel were present, denying 14 [Petitioner] his right to object and confrontation.” (Id. at 7.) These claims all appear to 15 relate to Petitioner’s original 2010 judgment and conviction and, as such, they are 16 successive. See 28 U.S.C. § 2244(b)(3)(A). As discussed in this Court’s August 4, 2020 17 dismissal Order, to the extent Petitioner raises claims related to his 2010 conviction in SCS 18 215653, unless Petitioner can show that he has obtained an order from the appropriate court 19 of appeals authorizing the district court to consider a successive petition, the Petition may 20 not be filed in the district court. See 28 U.S.C. § 2244(b)(3)(A). As such, to the extent the 21 Petition raises claims seeking to challenge his 2010 conviction, Petitioner’s Motion for 22 Reconsideration is DENIED. See Fed. R. Civ. P. 60(b). 23 II. Claims Related to California Court of Appeal Case Number D0746546 24 In his Motion, Petitioner contends he is challenging his resentencing order, not his 25 original 2010 conviction. (Mot. at 1.) In his original Petition, Petitioner does include a 26 reference to an October 8, 2019 opinion of the California Court of Appeal in Case No. 27 D074656 related to “sentencing” issues. (See Pet. at 2.) Petitioner contends that “in 2018 28 the remand order was finally heard yet the Superior Court refused those orders resulting in 1 a reversal . . . in Case D074656.” (Id. at 7.) He argues that in California Court of Appeal 2 case “D0746456 the court declared [Petitioner] was correct concerning sentencing errors 3 raised in 20 plus habeas petitions.” (Id.) 4 Petitioner contends his Petition is not successive because these claims relate to his 5 resentencing. While it is not entirely clear from the face of the Petition, it appears Petitioner 6 is now in custody at the San Diego County Jail awaiting that resentencing. (See id. at 1.) 7 However, it is not clear that Petitioner has raised the claims related to his resentencing in 8 state court, nor is it clear that Petitioner has yet been resentenced.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL DUNSMORE, Case No.: 3:20-cv-1378-JLS-AHG
12 Petitioner, ORDER (1) GRANTING IN PART 13 v. AND DENYING IN PART PETITIONER’S MOTION FOR 14 UNKNOWN, REHEARING AND (2) CLARIFYING 15 Respondent. THIS COURT’S AUGUST 4, 2020 DISMISSAL ORDER 16
17 (ECF Nos. 3, 5) 18 19 On July 17, 2020, Petitioner Darryl Dunsmore, a prisoner proceeding pro se, filed a 20 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 together with a request to 21 proceed in forma pauperis. On August 4, 2020, this Court dismissed the Petition as 22 successive pursuant to § 2244(b)(3)(A). (ECF No. 3.) In its dismissal Order, the Court 23 noted that this was not the first Petition for a Writ of Habeas Corpus that Petitioner had 24 submitted challenging his June 4, 2010 conviction in San Diego Superior Court Case No. 25 SCS 215653. (Id.) Indeed, on May 17, 2013, Petitioner filed a Petition for Writ of Habeas 26 Corpus in Case No. 13-cv-1193-GPC-PCL, in which Petitioner also challenged his 27 conviction in San Diego Superior Court Case No. SCS 215653. On August 10, 2015, this 28 Court denied the petition on the merits. See Dunsmore v. Beard, Case No. 13-cv-1193- 1 GPC-PCL (S.D. Cal. Aug. 10, 2015), Order, ECF No. 115. As such, this Court dismissed 2 Petitioner’s July 17, 2020 Petition as successive, without prejudice to refiling if and when 3 Petitioner obtained an Order from the appropriate court of appeals authorizing the district 4 court to consider a successive petition. (See ECF No. 3 at 2, citing 28 U.S.C. 5 § 2244(b)(3)(A).) 6 MOTION FOR REHEARING 7 On August 24, 2020, Petitioner filed a “Motion for Rehearing,” (“Motion” or 8 “Mot.”) in which he contends the Court improperly dismissed his petition as successive.1 9 (Mot., ECF No. 5.) He argues that this Court erred in dismissing the Petition as successive 10 because he was not challenging his 2010 conviction but rather his resentencing, which 11 Petitioner states was ordered by the California Court of Appeal on October 8, 2019, in case 12 number D074656.2 (See id. at 1.) 13 The Court construes Petitioner’s Motion as one filed pursuant to Federal Rule of 14 Civil Procedure 60(b), under which reconsideration is appropriate only upon a showing of: 15 (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; 16 (3) an adverse party’s fraud, misrepresentation, or other misconduct; (4) a void judgment; 17 (5) a satisfied, released or discharged judgment; or (6) any other reason justifying relief 18 from the operation of the judgment. Fed. R. Civ. P. 60(b). “A motion under Rule 60(b) 19 must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a 20 21 1 On October 26, 2020, Petitioner filed a notice of appeal to the Ninth Circuit Court of Appeals. (ECF 22 No. 6.) As a general rule, a district court is divested of jurisdiction once a notice of appeal has been filed. See Pope v. Sav. Bank of Puget Sound, 850 F.2d 1345, 1347 (9th Cir. 1988). However, the Ninth Circuit 23 has held that a district court may “clarify its original order pursuant to Rule 60(a) despite the notice of appeal.” Morris v. Morgan Stanley & Co., 942 F.2d 648, 655 (9th Cir. 1991). 24
25 2 The Court takes judicial notice of the California Court of Appeal’s October 8, 2019 Opinion ordering the case be remanded to the trial court for resentencing. See People v. Dunsmore, Case No. D074656, 26 2019 WL 4941363 (Cal. Ct. App. Oct. 8, 2019); Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from 27 sources whose accuracy cannot reasonably be questioned.”); Harris v. County of Orange, 682 F.3d 1126, 1131–32 (9th Cir. 2012) (stating a federal court may take judicial notice of “documents on file in federal 28 1 year after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. 2 P. 60(c). 3 On further review of the Petition, it appears that Petitioner is seeking to challenge 4 two different state court orders related to his incarceration. The Court will discuss them 5 separately. 6 I. Claims Related to San Diego Superior Court Case Number SCS 215653 7 On the first page of the Petition, Petitioner asserts that he is challenging his June 4, 8 2010 judgment of conviction in San Diego Superior Court Case No. “SCS 215653.” (See 9 “Pet.,” ECF No. 1 at 1.) He states that he is “overdue for release.” (Id. at 2.) In his first 10 ground for relief, Petitioner contends that his sentence in SCS 215653 constitutes “cruel 11 and unusual punishment.” (Id. at 6.) Specifically, he alleges that on June 4, 2010, the state 12 court “made a finding of fact that Petitioner’s case was a serious crime.” (Id. at 6.) 13 Petitioner argues that “on 6/4/10, neither myself nor counsel were present, denying 14 [Petitioner] his right to object and confrontation.” (Id. at 7.) These claims all appear to 15 relate to Petitioner’s original 2010 judgment and conviction and, as such, they are 16 successive. See 28 U.S.C. § 2244(b)(3)(A). As discussed in this Court’s August 4, 2020 17 dismissal Order, to the extent Petitioner raises claims related to his 2010 conviction in SCS 18 215653, unless Petitioner can show that he has obtained an order from the appropriate court 19 of appeals authorizing the district court to consider a successive petition, the Petition may 20 not be filed in the district court. See 28 U.S.C. § 2244(b)(3)(A). As such, to the extent the 21 Petition raises claims seeking to challenge his 2010 conviction, Petitioner’s Motion for 22 Reconsideration is DENIED. See Fed. R. Civ. P. 60(b). 23 II. Claims Related to California Court of Appeal Case Number D0746546 24 In his Motion, Petitioner contends he is challenging his resentencing order, not his 25 original 2010 conviction. (Mot. at 1.) In his original Petition, Petitioner does include a 26 reference to an October 8, 2019 opinion of the California Court of Appeal in Case No. 27 D074656 related to “sentencing” issues. (See Pet. at 2.) Petitioner contends that “in 2018 28 the remand order was finally heard yet the Superior Court refused those orders resulting in 1 a reversal . . . in Case D074656.” (Id. at 7.) He argues that in California Court of Appeal 2 case “D0746456 the court declared [Petitioner] was correct concerning sentencing errors 3 raised in 20 plus habeas petitions.” (Id.) 4 Petitioner contends his Petition is not successive because these claims relate to his 5 resentencing. While it is not entirely clear from the face of the Petition, it appears Petitioner 6 is now in custody at the San Diego County Jail awaiting that resentencing. (See id. at 1.) 7 However, it is not clear that Petitioner has raised the claims related to his resentencing in 8 state court, nor is it clear that Petitioner has yet been resentenced. As such, the state court 9 proceedings related to Petitioner’s resentencing appear to be ongoing. 10 Federal courts may not interfere with ongoing state criminal proceedings absent 11 extraordinary circumstances. Younger v. Harris, 401 U.S. 37, 45–46 (1971); see Middlesex 12 County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982) (“[Younger] 13 espouse[d] a strong federal policy against federal-court interference with pending state 14 judicial proceedings.”). These concerns are particularly important in the habeas context, 15 where a state prisoner’s conviction may be reversed on appeal, thereby rendering the 16 federal issue moot. Sherwood v. Tompkins, 716 F.2d 632, 634 (9th Cir. 1983). 17 Absent extraordinary circumstances, abstention under Younger is required when: (1) 18 state judicial proceedings are ongoing; (2) the state proceedings involve important state 19 interests; and (3) the state proceedings afford an adequate opportunity to raise the federal 20 issue. Columbia Basin Apartment Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th Cir. 21 2001). It appears all three of these criteria are satisfied here. At the time he filed the instant 22 Petition, it appears Petitioner had not yet been resentenced. (See Pet. at 26, 33.) Thus, 23 proceedings are ongoing in the state courts.3 Further, there is no question that the state 24 25 3 If Petitioner has indeed been resentenced, the Court notes that he must still exhaust state judicial remedies 26 before bringing any claims related to the state court’s decision in federal court pursuant to 28 U.S.C. § 2254. To exhaust state judicial remedies, a California state prisoner must present the California Supreme 27 Court with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133–34 (1987). 28 1 criminal proceedings and the recalculation of Petitioner’s sentence involve important state 2 interests, and that state proceedings afford him an opportunity to raise federal issues related 3 to his resentencing. Therefore, to the extent Petition is seeking to raise claims related to 4 his resentencing ordered in California Court of Appeal Case number D074656, this Court 5 must abstain from interfering with ongoing state criminal proceedings. Juidice v. Vail, 430 6 U.S. 327, 337 (1977) (holding that if Younger abstention applies, a court may not retain 7 jurisdiction but should dismiss the action). 8 In his Motion, Petitioner references an order from the United States Court of Appeal 9 for the Ninth Circuit which “declared” that a challenge to his resentencing order by the 10 California Court of Appeal in Case number D0746456 would not be deemed successive.4 11 As discussed above, to the extent Petitioner was attempting to raise claims related to 12 Petitioner’s ordered resentencing, his Motion for Reconsideration is GRANTED in part. 13 Fed. R. Civ. P. 60(b)(1). Those claims, however, remain DISMISSED because the Court 14 must abstain from addressing them because state court proceedings are ongoing.5 See 15 Younger, 401 U.S. at 45–46. 16 17 4 The Court notes that it appears Petitioner filed an application for authorization to file a second or 18 successive habeas corpus petition with the United States Court of Appeals for the Ninth Circuit. The Court takes judicial notice of the order filed in the case. See Fed. R. Evid. 201(b)(2); Harris, 682 F.3d at 19 1131–32; United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases . . . .”). On July 27, 2020, the Ninth Circuit issued an Order in which the 20 panel noted that some of the claims alleged in the application appeared to relate to Petitioner’s 21 resentencing following an October 8, 2019 remand from the California Court of Appeal. See Order, Dunsmore v. Eldridge, Case No. 20-71281, at 1 (9th Cir. July 27, 2020). The Ninth Circuit panel noted 22 that, while claims related to Petitioner’s resentencing may not be successive, it was unclear whether Petitioner had yet been resentenced. See id. The Ninth Circuit stated, “We decline to transfer the 23 application to the district court because it is unclear whether the state trial court has entered new judgment.” Id. at 1–2. The panel further stated that “if the applicant seeks to challenge the new judgment, 24 he must file a § 2254 petition which complies with the procedural requirements of 28 U.S.C. §§ 2244(d) 25 and 2254.” Id. at 2 (citations omitted).
26 5 If Petitioner has indeed been resentenced, the Court notes that he must still exhaust state judicial remedies before bringing any claims related to the state court’s decision in federal court pursuant to 28 U.S.C. 27 § 2254. To exhaust state judicial remedies, a California state prisoner must present the California Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 28 1 CONCLUSION 2 Based on the forgoing, Petitioner’s motion for reconsideration is GRANTED IN 3 || PART and DENIED IN PART. The Court therefore CLARIFIES its order August 4, 4 ||2020 dismissal Order accordingly. See Morris, 942 F.2d at 655 (holding a district court 5 clarify its original order pursuant to Rule 60(a) despite a notice of appeal). As for the 6 ||claims in the Petition that appear to relate to Petitioner’s 2010 trial proceedings and 7 conviction, the Court DENIES the Motion because those claims are barred as successive. 8 ||To the extent Petitioner sought to raise claims related to pending resentencing, the Court 9 || GRANTS Petitioner’s Motion to the extent those claims were deemed successive. These 10 || claims, however, are DISMISSED because the Court must abstain from interfering with 11 Petitioner’s ongoing resentencing.® The case therefore remains DISMISSED without 12 || prejudice. 13 IT IS SO ORDERED. 14 Dated: November 5, 2020 . tt 15 on. Janis L. Sammartino 16 United States District Judge 17 18 19 20 21 22 || 23 The Court notes that among the numerous petitions for writ of habeas corpus filed in this Court by Petitioner, on November 2, 2020, the Court dismissed another habeas petition filed by Petitioner pursuant 25 28 U.S.C.§ 2254 in Civil Case No. 20-cv-1518-BAS-KSC. As here, the Court in that case found Petitioner had raised claims related to his 2010 conviction and claims related to his 2019 order remanding 26 ||his case for resentencing. The Court in that case likewise concluded that to the extent the Petition contained claims related to Petitioner’s original 2010 conviction, it must be dismissed as successive and 27 the extent Petitioner also raised claims related to his ongoing resentencing proceedings, they were 28 dismissed under the Younger’s abstention doctrine. See Dunsmore vy. Eldridge, 20-cv-1518-BAS-KSC (S.D. Cal. Nov. 1, 2020) Order, ECF No. 4.