1 2 3 4 5 6 7 JS-6 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 11 12 13 ELIJAH POUNCEY, ) Case No. CV 21-00128-PSG (AS) ) 14 Petitioner, ) ORDER OF DISMISSAL ) 15 ) v. ) 16 ) CRAIG KOENIG, ) 17 ) Respondent. ) 18 ) 19 20 BACKGROUND 21 22 On January 4, 2021, Elijah Pouncey (“Petitioner”), a 23 California state prisoner proceeding pro se, filed a “Petition for 24 Writ of Habeas Corpus” (Dkt. No. 1), which the Court construed as 25 a Petition for Writ of Habeas Corpus by a Person in State Custody 26 27 28 1 pursuant to 28 U.S.C. § 2254 (“Petition”) (see Dkt. No. 3 at 1).1 2 Petitioner challenges his 25-years-to-life sentence imposed under 3 California’s Three Strikes Law resulting from his 2010 convictions 4 for possession of a firearm by a felon and for possession of 5 ammunition by a felon, in Los Angeles County Superior Court (Case 6 No. BA369280).2 7 8 Petitioner contends that two prior felony convictions were 9 illegally and disproportionately used to enhance his sentence 10 under California’s Three Strikes Law, in violation of his rights 11 under the Fifth and Fourteenth Amendments, and that he is entitled 12 to have his sentence recalled pursuant to California Penal Code 13 (“P.C.”) § 1170(d)(1). (See Petition at 3). 14 15 On July 23, 2013, Petitioner filed a Petition for Writ of 16 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 17 § 2254, challenging the same conviction. See Elijah Demitrice 18 Pouncey v. Amy Miller, Case No. CV 13-05310-PSG (AS); Dkt. No. 1 19 (“the prior habeas action”). On December 15, 2014, the district 20 court issued an Order and Judgment denying that habeas petition 21 22 1 On January 11, 2021, the Court, based on its screening 23 of the Petition, issued an Order Requiring the Filing of a First Amended Petition. (Dkt. No. 3). Based on this Order of 24 Dismissal, the Court’s January 11, 2021 Order, other than the first sentence, is VACATED. 25 2 The Court takes judicial notice OF Petitioner’s other 26 federal habeas case –- Elijah Demitrice Pouncey v. Amy Miller, Case No. CV 13-5310-PSG (AS). Petitioner was convicted of one 27 count of possession of a firearm by a felon and one count of possession of ammunition by a felon. 28 2 1 with prejudice, in accordance with the findings and conclusions 2 of the Magistrate Judge, and denied a certificate of 3 appealability. (Id.; Dkt. Nos. 19-21). On December 4, 2015, the 4 Ninth Circuit Court of Appeals denied Petitioner’s request for a 5 certificate of appealability. (Id.; Dkt. No. 29) 6 7 DISCUSSION 8 9 The Antiterrorism and Effective Death Penalty Act of 1996 10 (“AEDPA”), enacted on April 24, 1996, provides in pertinent part 11 that: 12 (a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus 13 to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears 14 that the legality of such detention has been determined by a judge or court of the United States on a prior 15 application for a writ of habeas corpus, except as provided in §2255. 16 (b)(1) A claim presented in a second or successive 17 habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. 18 (2) A claim presented in a second or successive 19 habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed 20 unless-- 21 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to 22 cases on collateral review by the Supreme Court, that was previously unavailable; or 23 (B)(i) the factual predicate for the claim could 24 not have been discovered previously through the exercise of due diligence; and 25 (ii) the facts underlying the claim, if proven and 26 viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence 27 that, but for constitutional error, no reasonable fact 28 3 1 finder would have found the applicant guilty of the underlying offense. 2 (3)(A) Before a second or successive application 3 permitted by this section is filed in the district court, the applicant shall move in the appropriate court 4 of appeals for an order authorizing the district court to consider the application. 5 (B) A motion in the court of appeals for an order 6 authorizing the district court to consider a second or successive application shall be determined by a three- 7 judge panel of the court of appeals. 8 (C) The court of appeals may authorize the filing of a second or successive application only if it 9 determines that the application makes a prima facie showing that the application satisfies the requirements 10 of this subsection. 11 (D) The court of appeals shall grant or deny the authorization to file a second or successive application 12 not later than 30 days after the filing of the motion. 13 (E) The grant or denial of an authorization by a court of appeals to file a second or successive 14 application shall not be appealable and shall not be the subject of a Petition for Rehearing or for a Writ of 15 Certiorari. 16 (4) A district court shall dismiss any claim presented in a second or successive application that the 17 court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the 18 requirements of this section. 28 U.S.C. § 2244. 19 28 U.S.C. § 2244(b)(3) “creates a ‘gatekeeping’ mechanism for 20 the consideration of second or successive applications in district 21 court. The prospective applicant must file in the court of 22 appeals a motion for leave to file a second or successive habeas 23 application in the district court. § 2244(b)(3)(A).” Felker v. 24 Turpin, 518 U.S. 651, 657 (1996). 25 26 The instant Petition, filed on January 4, 2021, and the prior 27 28 4 1 habeas action challenge Petitioner’s custody pursuant to the same 2 2010 judgment entered by the Los Angeles County Superior Court. 3 Accordingly, the instant Petition is a second or successive habeas 4 petition for purposes of 28 U.S.C. § 2244. Therefore, Petitioner 5 was required to obtain authorization from the Court of Appeals 6 before filing the present Petition. See 28 U.S.C. §2244(b)(3)(A). 7 No such authorization has been obtained in this case. 8 9 To the extent that Petitioner relies on P.C. § 1170(d)(1)3 10 as a basis for filing a successive petition, see Petition at 3, 11 5-6, Petitioner’s reliance is without merit. P.C. § 1170(d)(1) 12 is not “a new rule of constitutional law, made retroactive to 13 cases on collateral review by the Supreme Court, that was 14 previously unavailable.” Tyler v. Cain, 533 U.S. 656, 662 (2001); 15 see also Johnson v. California, 2019 WL 4276636, at n.3 (C.D. Cal. 16 Sept. 10, 2019)(“[A] new state right afforded by an amended state 17 statute does not create a new federal constitutional right and 18 certainly is not the equivalent of a federal constitutional right 19 newly recognized by the United States Supreme Court and made 20 retroactively applicable to cases on collateral review.” quoting 21 Trejo v. Sherman, 2016 WL 9075049, at *2 (C.D. Cal. Oct. 24, 22 2016), report and recommendation accepted, 2016 WL 8738143 (C.D.
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1 2 3 4 5 6 7 JS-6 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 11 12 13 ELIJAH POUNCEY, ) Case No. CV 21-00128-PSG (AS) ) 14 Petitioner, ) ORDER OF DISMISSAL ) 15 ) v. ) 16 ) CRAIG KOENIG, ) 17 ) Respondent. ) 18 ) 19 20 BACKGROUND 21 22 On January 4, 2021, Elijah Pouncey (“Petitioner”), a 23 California state prisoner proceeding pro se, filed a “Petition for 24 Writ of Habeas Corpus” (Dkt. No. 1), which the Court construed as 25 a Petition for Writ of Habeas Corpus by a Person in State Custody 26 27 28 1 pursuant to 28 U.S.C. § 2254 (“Petition”) (see Dkt. No. 3 at 1).1 2 Petitioner challenges his 25-years-to-life sentence imposed under 3 California’s Three Strikes Law resulting from his 2010 convictions 4 for possession of a firearm by a felon and for possession of 5 ammunition by a felon, in Los Angeles County Superior Court (Case 6 No. BA369280).2 7 8 Petitioner contends that two prior felony convictions were 9 illegally and disproportionately used to enhance his sentence 10 under California’s Three Strikes Law, in violation of his rights 11 under the Fifth and Fourteenth Amendments, and that he is entitled 12 to have his sentence recalled pursuant to California Penal Code 13 (“P.C.”) § 1170(d)(1). (See Petition at 3). 14 15 On July 23, 2013, Petitioner filed a Petition for Writ of 16 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 17 § 2254, challenging the same conviction. See Elijah Demitrice 18 Pouncey v. Amy Miller, Case No. CV 13-05310-PSG (AS); Dkt. No. 1 19 (“the prior habeas action”). On December 15, 2014, the district 20 court issued an Order and Judgment denying that habeas petition 21 22 1 On January 11, 2021, the Court, based on its screening 23 of the Petition, issued an Order Requiring the Filing of a First Amended Petition. (Dkt. No. 3). Based on this Order of 24 Dismissal, the Court’s January 11, 2021 Order, other than the first sentence, is VACATED. 25 2 The Court takes judicial notice OF Petitioner’s other 26 federal habeas case –- Elijah Demitrice Pouncey v. Amy Miller, Case No. CV 13-5310-PSG (AS). Petitioner was convicted of one 27 count of possession of a firearm by a felon and one count of possession of ammunition by a felon. 28 2 1 with prejudice, in accordance with the findings and conclusions 2 of the Magistrate Judge, and denied a certificate of 3 appealability. (Id.; Dkt. Nos. 19-21). On December 4, 2015, the 4 Ninth Circuit Court of Appeals denied Petitioner’s request for a 5 certificate of appealability. (Id.; Dkt. No. 29) 6 7 DISCUSSION 8 9 The Antiterrorism and Effective Death Penalty Act of 1996 10 (“AEDPA”), enacted on April 24, 1996, provides in pertinent part 11 that: 12 (a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus 13 to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears 14 that the legality of such detention has been determined by a judge or court of the United States on a prior 15 application for a writ of habeas corpus, except as provided in §2255. 16 (b)(1) A claim presented in a second or successive 17 habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. 18 (2) A claim presented in a second or successive 19 habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed 20 unless-- 21 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to 22 cases on collateral review by the Supreme Court, that was previously unavailable; or 23 (B)(i) the factual predicate for the claim could 24 not have been discovered previously through the exercise of due diligence; and 25 (ii) the facts underlying the claim, if proven and 26 viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence 27 that, but for constitutional error, no reasonable fact 28 3 1 finder would have found the applicant guilty of the underlying offense. 2 (3)(A) Before a second or successive application 3 permitted by this section is filed in the district court, the applicant shall move in the appropriate court 4 of appeals for an order authorizing the district court to consider the application. 5 (B) A motion in the court of appeals for an order 6 authorizing the district court to consider a second or successive application shall be determined by a three- 7 judge panel of the court of appeals. 8 (C) The court of appeals may authorize the filing of a second or successive application only if it 9 determines that the application makes a prima facie showing that the application satisfies the requirements 10 of this subsection. 11 (D) The court of appeals shall grant or deny the authorization to file a second or successive application 12 not later than 30 days after the filing of the motion. 13 (E) The grant or denial of an authorization by a court of appeals to file a second or successive 14 application shall not be appealable and shall not be the subject of a Petition for Rehearing or for a Writ of 15 Certiorari. 16 (4) A district court shall dismiss any claim presented in a second or successive application that the 17 court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the 18 requirements of this section. 28 U.S.C. § 2244. 19 28 U.S.C. § 2244(b)(3) “creates a ‘gatekeeping’ mechanism for 20 the consideration of second or successive applications in district 21 court. The prospective applicant must file in the court of 22 appeals a motion for leave to file a second or successive habeas 23 application in the district court. § 2244(b)(3)(A).” Felker v. 24 Turpin, 518 U.S. 651, 657 (1996). 25 26 The instant Petition, filed on January 4, 2021, and the prior 27 28 4 1 habeas action challenge Petitioner’s custody pursuant to the same 2 2010 judgment entered by the Los Angeles County Superior Court. 3 Accordingly, the instant Petition is a second or successive habeas 4 petition for purposes of 28 U.S.C. § 2244. Therefore, Petitioner 5 was required to obtain authorization from the Court of Appeals 6 before filing the present Petition. See 28 U.S.C. §2244(b)(3)(A). 7 No such authorization has been obtained in this case. 8 9 To the extent that Petitioner relies on P.C. § 1170(d)(1)3 10 as a basis for filing a successive petition, see Petition at 3, 11 5-6, Petitioner’s reliance is without merit. P.C. § 1170(d)(1) 12 is not “a new rule of constitutional law, made retroactive to 13 cases on collateral review by the Supreme Court, that was 14 previously unavailable.” Tyler v. Cain, 533 U.S. 656, 662 (2001); 15 see also Johnson v. California, 2019 WL 4276636, at n.3 (C.D. Cal. 16 Sept. 10, 2019)(“[A] new state right afforded by an amended state 17 statute does not create a new federal constitutional right and 18 certainly is not the equivalent of a federal constitutional right 19 newly recognized by the United States Supreme Court and made 20 retroactively applicable to cases on collateral review.” quoting 21 Trejo v. Sherman, 2016 WL 9075049, at *2 (C.D. Cal. Oct. 24, 22 2016), report and recommendation accepted, 2016 WL 8738143 (C.D. 23 Cal. Nov. 18, 2016)). 24 25 3 Amended P.C. § 1170(d)(1), effective on August 6, 2020 26 and operative until January 1, 2020, provides that a sentencing court may recall a sentence and resentence a defendant to a 27 reduced term based upon consideration of certain postconviction factors. 28 5 1 Moreover, the claim asserted in the instant Petition does not 2 appear to fall within the exceptions to the bar on second or 3 successive petitions because the asserted claim is not based on 4 newly discovered facts or a “a new rule of constitutional law, 5 made retroactive to cases on collateral review by the Supreme 6 Court, that was previously unavailable.” Tyler v. Cain, 533 U.S. 7 656, 662 (2001). However, this determination must be made by the 8 United States Court of Appeals upon a petitioner’s motion for an 9 order authorizing the district court to consider his second or 10 successive petition. 28 U.S.C. § 2244(b); see also Burton v. 11 Stewart, 549 U.S. 147, 157 (2007)(where the petitioner did not 12 receive authorization from the Court of Appeals before filing 13 second or successive petition, “the District Court was without 14 jurisdiction to entertain [the petition]”); Barapind v. Reno, 225 15 F.3d 1100, 1111 (9th Cir. 2000)(“[T]he prior-appellate-review 16 mechanism set forth in § 2244(b) requires the permission of the 17 court of appeals before ‘a second or successive habeas application 18 under § 2254’ may be commenced.”). 19 20 Because Petitioner has not obtained authorization from the 21 Ninth Circuit Court of Appeals, this Court cannot entertain the 22 present Petition. See Burton, 549 U.S. at 157. 23 /// 24 /// 25 /// 26 /// 27 /// 28 6 1 ORDER 2 3 Accordingly, IT IS ORDERED that the Petition be dismissed 4]| without prejudice. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 gl parep: 2/25/21 d Eu. LIM 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