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11 KENNETH L. KIMBLE, Case No. 2:20-cv-01991-CAS (SHK) 12 Petitioner, 13 ORDER SUMMARILY DISMISSING v. ACTION WITHOUT PREJUDICE 14
R. JOHNSON, Warden, 15
16 Respondent. 17
18 INTRODUCTION 19 Petitioner Kenneth L. Kimble (“Petitioner”), proceeding pro se, 20 constructively filed1 a Petition for Writ of Habeas Corpus, under 28 U.S.C. § 2254 21 (“Petition” or “Pet.”) challenging his conviction for attempted second-degree 22 robbery, second-degree robbery, and sending a false bomb. Electronic Case Filing 23 Number (“ECF No.”) 1, Pet. For the reasons discussed below, this Court denies 24 the Petition and dismisses the case without prejudice. 25 / / / 26
27 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to 1 II. PROCEDURAL HISTORY 2 A. State Court Proceedings 3 On October 29, 2014, following a jury trial in the Los Angeles County 4 | Superior Court (“Trial Court”), Petitioner was convicted of attempted second 5 | degree robbery, in violation of §§ 664/211 of the California Penal Code; second 6 | degree robbery, in violation of § 211 of the California Penal Code; and sending a 7 | false bomb, in violation of § 148.1 of the California Penal Code. See California 8 | Superior Court Case No. BA410832.2 Petitioner was sentenced on February 13, 9 | 2015, to fifty-five years-to-life in state prison. See Kenneth L. Kimble v. Raymond 10 | Madden, No. 2:17-cv-01597-CAS (SHK) (Case closed on Aug. 13, 2018) 11 | (“17-1597”), ECF No. 2, Report and Recommendation (“R&R”) at 2 (citing Court 12 | Transcript at 307-14). 13 On May 12, 2016, the California Court of Appeal rejected Petitioner’s claims 14 | and affirmed the judgment. California Court of Appeal Case No. B262249. 15 | Petitioner filed a petition for review in the California Supreme Court raising claims 16 | generally corresponding to all grounds alleged in the Petition herein. 17-1597, ECF 17 | No. 10-15. On September 14, 2016, the California Supreme Court denied review. 18 | California Supreme Court Case No. S235481. 19 The California Court of Appeal subsequently rejected Petitioner’s state 20 | habeas petition noting the same grounds were raised in Petitioner’s appeal from 21 | conviction. California Court of Appeal Case No. B301012. 22 B. Federal Court Proceedings 23 On February 21, 2017, Petitioner constructively filed a habeas petition in the 24 | Central District of California, (“First Petition”). 17-1597, ECF No. 1, Pet. 25 | Petitioner raised the following grounds for relief in his First Petition: (1) Petitioner 26 | was denied his Sixth Amendment right to the effective assistance of counsel when 27 |} Sa 28 2 The Court takes judicial notice of Petitioner’s prior proceedings in this Court and in the state courts. See In re Korean Air Lines Co., 642 F.3d 685, 689 n.1 (9th Cir. 2011).
1 counsel failed to investigate and supply the Trial Court with legal authority to 2 support admission of third party culpability evidence and to object to the testimony 3 of the DNA expert; (2) the Trial Court abused its discretion by refusing to strike 4 Petitioner’s prior strike convictions; (3) the Trial Court’s conclusion that 5 Petitioner’s 1993 convictions for assault constituted felonies and qualified as prior 6 strikes under the Three Strikes Law is not supported by evidence; and (4) 7 Petitioner’s Fourteenth Amendment due process of law was violated at 8 Petitioner’s Three Strikes Sentencing hearing when Petitioner was not allowed to 9 testify. 17-1597 ECF No. 1, Pet. at 5-6; 17-1597 ECF No. 18, R&R at 7. Respondent 10 Raymond Madden filed an answer arguing that the Petition should be dismissed 11 because Petitioner’s sentencing claim was not cognizable and 28 U.S.C. § 2254(d) 12 precluded relitigating the rest of Petitioner’s claims. 17-1597 ECF No. 9, Answer. 13 On May 14, 2018, the Magistrate Judge issued an R&R recommending denial 14 of the Petition and dismissal of the action with prejudice. 17-1597 ECF No. 18, 15 R&R. The Magistrate Judge concluded that habeas relief was not warranted with 16 respect to: (1) Petitioner’s ineffective assistance of counsel claims, and (2) 17 Petitioner’s sentencing error claims. Id. at 9-30. On August 13, 2018, the District 18 Judge adopted the findings in the R&R, entered a Judgment denying the petition 19 and dismissing the action with prejudice, and issued an Order Denying Certificate 20 of Appealability. 17-1597 ECF Nos. 22-24. 21 On April 18, 2019, Petitioner filed a notice of appeal of the denial of the First 22 Petition in the Ninth Circuit. 17-1597 ECF No. 26, Appeal. On July 22, 2019, the 23 Ninth Circuit issued an order denying Petitioner’s request for a certificate of 24 appealability (“9th Cir. COA Denial”) because the notice of appeal was not timely 25 filed. 17-1597 ECF No. 28, 9th Cir. COA Denial. 26 1. 2020 Petition 27 On February 18, 2020, Petitioner constructively filed the instant Petition. 1 | (Filed Feb. 28, 2020)). The Petition again challenges his October 29, 2014 2 | conviction for attempted second-degree robbery, second-degree robbery, and 3 | sending a false bomb. Id. at 2. Petitioner raises the following grounds for relief in 4 | his Petition: (1) Petitioner was denied due process under the Fifth Amendment 5 | because he was convicted under a ‘vague’ criminal statute,” and (2) Petitioner 6 | was denied due process under the Fourteenth Amendment by the California 7 | Department of Corrections and Rehabilitation (“CDCR”) when the CDCR 8 | imposed an administrative sanction against Petitioner. Id. at 5-6. 9 Ill. DISCUSSION 10 A. The Petition Is Subject To Dismissal As Second And Successive. 11 State prisoners must exhaust their state court remedies before a federal court 12 | may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan 13 | v. Boerckel, 526 U.S. 838, 842 (1999). 14 Habeas petitioners generally may file only one habeas petition challenging 15 | their conviction or sentence. See 28 U.S.C. § 2244(b)(1). Hence, if a prior petition 16 | raised a claim that was adjudicated on the merits, a petitioner must “move in the 17 | appropriate court of appeals for an order authorizing the district court to consider 18 | the [second or successive petition].” Id. § 2244(b)(3)(A); McNabb v. Yates, 576 19 | F.3d 1028, 1029 (9th Cir. 2009); Goodrum v. Busby, 824 F.3d 1188, 1194 (9th Cir. 20 | 2016) (“As a general principle, . . . a petition will not be deemed second or 21 | successive unless, at a minimum, an earlier-filed petition has been finally 22 | adjudicated.”). Absent proper authorization from the court of appeals, district 23 | courts lack jurisdiction to consider second or successive petitions and must dismiss 24 | such petitions without prejudice to refiling if the petitioner obtains the necessary 25 | authorization. Burton v. Stewart, 549 U.S. 147, 152-53, (2007); Cooper v. 26 | Calderon, 274 F.3d 1270, 1274 (9th Cir.
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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10
11 KENNETH L. KIMBLE, Case No. 2:20-cv-01991-CAS (SHK) 12 Petitioner, 13 ORDER SUMMARILY DISMISSING v. ACTION WITHOUT PREJUDICE 14
R. JOHNSON, Warden, 15
16 Respondent. 17
18 INTRODUCTION 19 Petitioner Kenneth L. Kimble (“Petitioner”), proceeding pro se, 20 constructively filed1 a Petition for Writ of Habeas Corpus, under 28 U.S.C. § 2254 21 (“Petition” or “Pet.”) challenging his conviction for attempted second-degree 22 robbery, second-degree robbery, and sending a false bomb. Electronic Case Filing 23 Number (“ECF No.”) 1, Pet. For the reasons discussed below, this Court denies 24 the Petition and dismisses the case without prejudice. 25 / / / 26
27 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to 1 II. PROCEDURAL HISTORY 2 A. State Court Proceedings 3 On October 29, 2014, following a jury trial in the Los Angeles County 4 | Superior Court (“Trial Court”), Petitioner was convicted of attempted second 5 | degree robbery, in violation of §§ 664/211 of the California Penal Code; second 6 | degree robbery, in violation of § 211 of the California Penal Code; and sending a 7 | false bomb, in violation of § 148.1 of the California Penal Code. See California 8 | Superior Court Case No. BA410832.2 Petitioner was sentenced on February 13, 9 | 2015, to fifty-five years-to-life in state prison. See Kenneth L. Kimble v. Raymond 10 | Madden, No. 2:17-cv-01597-CAS (SHK) (Case closed on Aug. 13, 2018) 11 | (“17-1597”), ECF No. 2, Report and Recommendation (“R&R”) at 2 (citing Court 12 | Transcript at 307-14). 13 On May 12, 2016, the California Court of Appeal rejected Petitioner’s claims 14 | and affirmed the judgment. California Court of Appeal Case No. B262249. 15 | Petitioner filed a petition for review in the California Supreme Court raising claims 16 | generally corresponding to all grounds alleged in the Petition herein. 17-1597, ECF 17 | No. 10-15. On September 14, 2016, the California Supreme Court denied review. 18 | California Supreme Court Case No. S235481. 19 The California Court of Appeal subsequently rejected Petitioner’s state 20 | habeas petition noting the same grounds were raised in Petitioner’s appeal from 21 | conviction. California Court of Appeal Case No. B301012. 22 B. Federal Court Proceedings 23 On February 21, 2017, Petitioner constructively filed a habeas petition in the 24 | Central District of California, (“First Petition”). 17-1597, ECF No. 1, Pet. 25 | Petitioner raised the following grounds for relief in his First Petition: (1) Petitioner 26 | was denied his Sixth Amendment right to the effective assistance of counsel when 27 |} Sa 28 2 The Court takes judicial notice of Petitioner’s prior proceedings in this Court and in the state courts. See In re Korean Air Lines Co., 642 F.3d 685, 689 n.1 (9th Cir. 2011).
1 counsel failed to investigate and supply the Trial Court with legal authority to 2 support admission of third party culpability evidence and to object to the testimony 3 of the DNA expert; (2) the Trial Court abused its discretion by refusing to strike 4 Petitioner’s prior strike convictions; (3) the Trial Court’s conclusion that 5 Petitioner’s 1993 convictions for assault constituted felonies and qualified as prior 6 strikes under the Three Strikes Law is not supported by evidence; and (4) 7 Petitioner’s Fourteenth Amendment due process of law was violated at 8 Petitioner’s Three Strikes Sentencing hearing when Petitioner was not allowed to 9 testify. 17-1597 ECF No. 1, Pet. at 5-6; 17-1597 ECF No. 18, R&R at 7. Respondent 10 Raymond Madden filed an answer arguing that the Petition should be dismissed 11 because Petitioner’s sentencing claim was not cognizable and 28 U.S.C. § 2254(d) 12 precluded relitigating the rest of Petitioner’s claims. 17-1597 ECF No. 9, Answer. 13 On May 14, 2018, the Magistrate Judge issued an R&R recommending denial 14 of the Petition and dismissal of the action with prejudice. 17-1597 ECF No. 18, 15 R&R. The Magistrate Judge concluded that habeas relief was not warranted with 16 respect to: (1) Petitioner’s ineffective assistance of counsel claims, and (2) 17 Petitioner’s sentencing error claims. Id. at 9-30. On August 13, 2018, the District 18 Judge adopted the findings in the R&R, entered a Judgment denying the petition 19 and dismissing the action with prejudice, and issued an Order Denying Certificate 20 of Appealability. 17-1597 ECF Nos. 22-24. 21 On April 18, 2019, Petitioner filed a notice of appeal of the denial of the First 22 Petition in the Ninth Circuit. 17-1597 ECF No. 26, Appeal. On July 22, 2019, the 23 Ninth Circuit issued an order denying Petitioner’s request for a certificate of 24 appealability (“9th Cir. COA Denial”) because the notice of appeal was not timely 25 filed. 17-1597 ECF No. 28, 9th Cir. COA Denial. 26 1. 2020 Petition 27 On February 18, 2020, Petitioner constructively filed the instant Petition. 1 | (Filed Feb. 28, 2020)). The Petition again challenges his October 29, 2014 2 | conviction for attempted second-degree robbery, second-degree robbery, and 3 | sending a false bomb. Id. at 2. Petitioner raises the following grounds for relief in 4 | his Petition: (1) Petitioner was denied due process under the Fifth Amendment 5 | because he was convicted under a ‘vague’ criminal statute,” and (2) Petitioner 6 | was denied due process under the Fourteenth Amendment by the California 7 | Department of Corrections and Rehabilitation (“CDCR”) when the CDCR 8 | imposed an administrative sanction against Petitioner. Id. at 5-6. 9 Ill. DISCUSSION 10 A. The Petition Is Subject To Dismissal As Second And Successive. 11 State prisoners must exhaust their state court remedies before a federal court 12 | may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan 13 | v. Boerckel, 526 U.S. 838, 842 (1999). 14 Habeas petitioners generally may file only one habeas petition challenging 15 | their conviction or sentence. See 28 U.S.C. § 2244(b)(1). Hence, if a prior petition 16 | raised a claim that was adjudicated on the merits, a petitioner must “move in the 17 | appropriate court of appeals for an order authorizing the district court to consider 18 | the [second or successive petition].” Id. § 2244(b)(3)(A); McNabb v. Yates, 576 19 | F.3d 1028, 1029 (9th Cir. 2009); Goodrum v. Busby, 824 F.3d 1188, 1194 (9th Cir. 20 | 2016) (“As a general principle, . . . a petition will not be deemed second or 21 | successive unless, at a minimum, an earlier-filed petition has been finally 22 | adjudicated.”). Absent proper authorization from the court of appeals, district 23 | courts lack jurisdiction to consider second or successive petitions and must dismiss 24 | such petitions without prejudice to refiling if the petitioner obtains the necessary 25 | authorization. Burton v. Stewart, 549 U.S. 147, 152-53, (2007); Cooper v. 26 | Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (“When the AEDPA is in play, the 27 | district court may not, in the absence of proper authorization from the court of 28
1 appeals, consider a second or successive habeas application.” (citation and internal 2 quotation marks omitted)); 28 U.S.C. § 2244(b)(2). 3 Here, the instant Petition challenges the same conviction that was challenged 4 in the First Petition, which was adjudicated on the merits and dismissed with 5 prejudice. See ECF No. 1, Pet; 17-1597 ECF Nos. 18, 22-24; McNabb, 576 F.3d at 6 1029 (“A disposition is ‘on the merits’ if the district court either considers and 7 rejects the claims or determines that the underlying claim will not be considered by 8 a federal court.”) (citing Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir.1990)). 9 Consequently, the instant Petition is second or successive to the 2017 Petition. See 10 28 U.S.C. § 2244(b). 11 Further, the Ninth Circuit denied Petitioner’s Appeal because it was not 12 timely filed. 17-1597 ECF No. 28, 9th Cir. COA Denial. As Petitioner has not 13 presented any documentation indicating the Ninth Circuit has issued “an order 14 authorizing the district court to consider the application,” the Court lacks 15 jurisdiction over the claims, and the instant Petition is subject to dismissal. 28 16 U.S.C. § 2244(b)(3)(A). 17 B. Petitioner’s Second Ground For Relief Appears To Be More 18 Properly Raised In A Civil Rights Action. 19 Although the Petition is clearly subject to dismissal as a successive Petition, 20 Petitioner should note that the second ground he raises is more properly brought in 21 a civil rights action, under 42 U.S.C. § 1983 (“§ 1983”), challenging the conditions 22 of confinement. Petitioner alleges he was denied due process under the Fourteenth 23 Amendment by the California Department of Corrections and Rehabilitation 24 (“CDCR”) when CDCR imposed an administrative sanction against Petitioner. 25 ECF No. 1, Pet. at 5-6. 26 A “§ 1983 action is the exclusive vehicle for claims brought by state 27 prisoners that are not within the core of habeas corpus[,]” and “an action that, 1 | judgment falls within § 1983’s scope[.]” Nettles v. Grounds, 830 F.3d 922, 927-28 2 | (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 645 (2017) (internal citations, 3 | emphasis, and quotation marks omitted); see also Nelson v. Campbell, 541 U.S. 4 | 637, 643 (2004) (“[C]onstitutional claims that . . . challenge the conditions of a 5 | prisoner’s confinement, whether the inmate seeks monetary or injunctive relief, fall 6 | outside of [the habeas] core and may be brought pursuant to § 1983[.]’’). 7 | Accordingly, challenging an administrative sanction against Petitioner that was 8 | enforced by the CDCR while Petitioner was incarcerated does not appear to lie at 9 | the core of relief that can be obtained through a habeas proceeding. 10 IV. ORDER 1] Based on the foregoing, IT IS ORDERED THAT the Petition is DENIED 12 | and that Judgment be entered DISMISSING the action without prejudice. 13 4 Dated: March 5, 2020 Alu ple 4 | de 15 HONORABLE CHRISTINA A“ SNYDER 16 United States District Judge 17 Presented by: 19 A pee 20 | eM 21 22 23 24 25 26 27 28