Johnny Guevara v. Ralph Diaz

Opinion

1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOHNNY GUEVARA, Case No. 8:20-cv-00854-JFW-KES 12 Petitioner, ORDER DISMISSING HABEAS 13 v. PETITION AS SUCCESSIVE 14 RALPH DIAZ, 15 Respondent. 16 17 I. 18 INTRODUCTION 19 In May 2020, Petitioner Johnny Guevara (“Petitioner”) filed a Petition for 20 Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. 21 (Dkt. 1 [the “Petition”].) The Petition challenges Petitioner’s 2011 convictions for 22 first-degree murder, car-jacking, street terrorism, and other crimes for which he was 23 sentenced to life without the possibility of parole plus 25 years to life. (Id. at 2.) 24 II. 25 PROCEDURAL BACKGROUND 26 A. Guevara I. 27 Petitioner pursued a direct appeal that ended when the California Supreme 28 Court denied review in September 2012. (Id. at 2-3.) 1 In October 2013, he filed a § 2254 petition in this Court raising claims 2 exhausted by his direct appeal. See Guevara v. Barnes, CDCA Case No. 8:13-cv- 3 1557-JFW-RZ (“Guevara I”). In April 2014, the Court issued a judgment denying 4 the petition on the merits. (Guevara I, Dkt. 17.) Both the district court and the 5 Ninth Circuit denied a certificate of appealability. (Guevara I, Dkt. 18, 26.) 6 B. Subsequent State Petitions. 7 In July 2019, Petitioner filed a habeas petition in the Orange County Superior 8 Court (“OCSC”) arguing that “false” eye-witness identification evidence and gang 9 expert testimony had deprived him of a fair trial. (Dkt. 1 at 3-4, 31.) The OCSC 10 denied the petition as untimely. (Id. at 30.) The OCSC found that the enactment of 11 California Senate Bill (“SB”) 1134 in 2016 (effective January 1, 2017) did not 12 excuse the delay, because existing California law already allowed habeas petitions 13 based on “false” evidence introduced at trial. (Id.) SB 1134 only changed 14 California’s standard for considering habeas petitions based on “new” evidence, of 15 which Petitioner presented none. (Id. at 30-31.) 16 The OCSC also found that Petitioner failed to show a fundamental 17 miscarriage of justice sufficient to overcome the time bar, because “the jury heard 18 all of the reasons why the identifications should or should not be credited, and 19 reasonably accepted the identifications” alleged by Petitioner to be false. (Id. at 20 31.) Additionally, the California case on which Petitioner relied to attack the 21 admissibility of the gang expert’s testimony as hearsay, People v. Sanchez, 63 22 Cal.4th 665 (2016), was determined by the California courts not to apply 23 retroactively. (Dkt. 1 at 32.) 24 Next, Petitioner filed a similar petition in the California Court of Appeal, 25 where it was summarily denied. (Id. at 4, 17.) 26 Finally, Petitioner filed a petition in the California Supreme Court re-framing 27 his claim as a federal due process claim: “The State Courts violated Petitioner’s 28 Procedural Due Process Safeguards to Newly Enacted Habeas Corpus Process,” 1 referring to SB 1134. (Id. at 4-5, 14.) That petition was summarily denied on 2 March 11, 2020. (Id. at 5, 11.) 3 C. The Instant Petition and Prior Federal Proceedings. 4 Petitioner now brings the same due process claim in his federal Petition. (Id. 5 at 5.) He contends that California created a “liberty interest” by enacting SB 1134, 6 and the state courts deprived him of “processing” under SB 1134 to which he was 7 entitled. (Id. at 5, 14.) 8 Upon screening the Petition, the Magistrate Judge ordered Petitioner to show 9 cause why it should not be dismissed as successive. (Dkt. 4.) Petitioner responded, 10 arguing that since SB 1134 is a new law, he is entitled to file a second § 2254 11 petition. (Dkt. 5.) 12 III. 13 DISCUSSION 14 A. Applicable Law. 15 In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 16 (“AEDPA”). AEDPA provides in relevant part as follows: 17 (b)(1) A claim presented in a second or successive habeas corpus 18 application under section 2254 that was presented in a prior 19 application shall be dismissed. 20 (2) A claim presented in a second or successive habeas corpus 21 application under section 2254 that was not presented in a prior 22 application shall be dismissed unless– 23 (A) the applicant shows that the claim relies on a new rule of 24 constitutional law, made retroactive to cases on collateral review by 25 the Supreme Court, that was previously unavailable; or 26 (B)(i) the factual predicate for the claim could not have been 27 discovered previously through the exercise of due diligence; and 28 (ii) the facts underlying the claim, if proven and viewed in light 1 of the evidence as a whole, would be sufficient to establish by clear 2 and convincing evidence that, but for constitutional error, no 3 reasonable factfinder would have found the applicant guilty of the 4 underlying offense. 5 (3)(A) Before a second or successive application permitted by this 6 section is filed in the district court, the applicant shall move in the 7 appropriate court of appeals for an order authorizing the district court 8 to consider the application. 9 28 U.S.C. § 2244(b) (emphasis added). 10 Thus, if a California petitioner wishes to file a second federal habeas petition 11 – even one based on new law or newly discovered facts – the petitioner must first 12 ask the Ninth Circuit for permission to do so. Without such authorization, the 13 District Court lacks jurisdiction to entertain the successive petition. Cooper v. 14 Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001), cert. denied, 538 U.S. 984 (2003). 15 B. Analysis. 16 Petitioner previously filed a § 2254 petition challenging his 2011 17 convictions. See Guevara I. The Petition now pending is a successive petition 18 challenging the same convictions. Thus, it was incumbent on Petitioner under 19 § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing the district 20 court to consider his new claims prior to filing the instant Petition. Petitioner’s 21 failure to secure an order from the Ninth Circuit deprives this Court of subject 22 matter jurisdiction. 23 // 24 // 25 // 26 // 27 // 28 // ] IT IS THEREFORE ORDERED that the successive Petition is dismissed 2 | without prejudice due to lack of subject matter jurisdiction. 4 | DATED: June 11, 2020 Aah fe Lm Zoaty WALTER 5 J/States District Judge 6 7 g | Presented by: 9 | _Heuns E, Seat Karen E. Scott 11 | United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28