Leonard Louie Ochoa v. A. Cardenas

• Court: District Court, C.D. California
• Decided: March 16, 2020
• Docket: 2:19-cv-08437
• Status: Unknown

Opinion

1 2 3 4 O 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LEONARD LOUIE OCHOA, Case No. 2:19-cv-08437-MWF (KES) 12 Petitioner, ORDER DISMISSING HABEAS 13 v. PETITION AS SUCCESSIVE 14 A. CARDENAS, Warden, 15 Respondent. 16 17 On September 30, 2019, Petitioner Leonard Louie Ochoa (“Petitioner”) filed 18 a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 19 U.S.C. § 2254. (Dkt. 1 [“Petition”].) Petitioner also consented to having a United 20 States Magistrate Judge conduct all proceedings in this case. (Dkt. 2.) The Petition 21 is the fifth habeas corpus petition that Petitioner has filed stemming from his 2014 22 state court conviction and sentence in California case number GA 084672. 23 Under Rule 4 of the Rules Governing Section 2254 Cases in the United States 24 District Courts, a habeas petition filed by a prisoner in state custody “must” be 25 summarily dismissed “[i]f it plainly appears from the petition and any attached 26 exhibits that the petitioner is not entitled to relief in the district court[.]” For the 27 reasons set forth below, the Petition must be dismissed without prejudice as a second 28 or successive petition pursuant to 28 U.S.C. § 2244(b). 1 I. 2 BACKGROUND State Court Proceedings 3 In 2014, Petitioner was convicted of an assault with a deadly weapon and 4 sentenced to a term of four years, released on parole, and then found to be a mentally 5 disturbed offender who was admitted for treatment. (Dkt. 1 at 15.) On March 11, 6 2019, Petitioner filed a notice of appeal; the California Court of appeal dismissed the 7 appeal as untimely. (Id.) 8 Prior Federal Habeas Petitions1 9 All of Petitioner’s habeas petitions make the same claim: that on December 10 15, 2014, after Judge David Gelfound in Los Angeles County Superior Court case 11 number GA084672 sentenced Petitioner to a 4-year prison term for a probation 12 violation, that Judge Gelfound also “utilized Prop. #47” and ordered Petitioner be 13 released.2 Petitioner asserts that when he made a request for the transcript from that 14 hearing, it is missing the final three pages which would indicate that he was ordered 15 released from custody. (Eastern District Case No. 1:15-cv-01769, Dkt. 1 at 7.) 16 In November 2015, Petitioner filed a 2254 petition challenging his probation 17 violation conviction and sentence in case no. GA084672. See Eastern District Case 18 No. 1:15-cv-01769 (“Ochoa I”). In February 2016, the Court entered a judgment 19 dismissing the petition as unexhausted. (Ochoa I, Dkt. 7.) 20

21 1 The Court takes judicial notice of its own records. Fed. R. Evid. 201(b)(2); 22 United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 23 2 On November 5, 2014, California voters approved Proposition 47, which, among other things, “[r]equire[s] misdemeanors instead of felonies for nonserious, 24 nonviolent crimes [such as] petty theft and drug possession, unless the defendant has 25 prior convictions for specified violent or serious crimes.” People v. Esparza, 242 Cal.App.4th 726, 735 (2015) (citing Voter Information Guide, Gen. Elec. (Nov. 4, 26 2014) text of Prop. 47, § 3). 27

28 1 In March 2016, Petitioner filed another 2254 petition challenging his probation 2 violation conviction and sentence in case no. GA084672. See Eastern District Case 3 No. 1:16-cv-0299 (“Ochoa II”). In July 2016, the Court entered a judgment again 4 dismissing the petition as unexhausted. (Ochoa II, Dkt. 5.) 5 Also in March 2016, Petitioner filed a third 2254 petition challenging his 6 probation violation conviction and sentence in case no. GA084672. See Central 7 District Case No. 16-cv-02222 (“Ochoa III”). In June 2016, the Court entered a 8 judgment dismissing the petition with prejudice as meritless. (Ochoa III, Dkt. 8.) 9 In August 2019, Petitioner filed a fourth 2254 petition challenging his 10 probation violation conviction and sentence in case no. GA084672. See Central 11 District Case No. 2:19-cv-06686 (“Ochoa IV”). In September 2019, after the Court 12 entered an order to show cause why the petition should not be dismissed as 13 successive, Petitioner voluntarily dismissed his petition. (Ochoa IV, Dkts. 3, 8.) The Instant Petition 14 The Petition again challenges Petitioner’s probation violation conviction and 15 sentence in case no. GA084672.3 (Dkt. 1 at 2.) Petitioner alleges that the “S.F. 16 Courthouse Clerk” lost his “Application/Petition for resentencing” and “Response” 17 under Cal. Penal Code § 1170.18(b), (g), appearing to mirror the claim he has brought 18 in his earlier habeas petitions that he was wrongfully imprisoned because relevant 19 court records were lost. (Id. at 5.) 20 // 21 // 22 23

24 3 While Petitioner also mentions case number PA082307, this Court has 25 explained to Petitioner that “the Los Angeles County Superior Court sentenced [Petitioner] to four years for the probation violation (case GA-084672) and dismissed 26 the misdemeanor (case PA-082307). … [Petitioner] was sentenced to four years in 27 the GA case and ordered ‘released’ in the PA case due to its dismissal. [Petitioner] was never ordered released in the GA case.” (See Case No. 2:17-cv-00403, Dkt. 4.) 28 1 II. 2 DISCUSSION 3 The instant Petition seemingly raises one claim for relief: that Petitioner is 4 wrongfully in custody4 in case number GA084672 because he was ordered released 5 on case number GA084672 and the record of that release was misplaced. 6 The Petition now pending is governed by 28 U.S.C. § 2244(b), which provides 7 in pertinent part as follows: 8 (b)(1) A claim presented in a second or successive habeas corpus 9 application under section 2254 that was presented in a prior application 10 shall be dismissed. 11 (2) A claim presented in a second or successive habeas corpus 12 application under section 2254 that was not presented in a prior 13 application shall be dismissed unless-- 14 (A) the applicant shows that the claim relies on a new rule of 15 constitutional law, made retroactive to cases on collateral review by the 16 Supreme Court, that was previously unavailable; or 17 (B)(i) the factual predicate for the claim could not have been 18 discovered previously through the exercise of due diligence; and 19 (ii) the facts underlying the claim, if proven and viewed in light 20 of the evidence as a whole, would be sufficient to establish by clear and 21 convincing evidence that, but for constitutional error, no reasonable 22 factfinder would have found the applicant guilty of the underlying 23 offense. 24 (3)(A) Before a second or successive application permitted by this 25

26 4 It is unclear if Petitioner is actually in custody. Petitioner is out of prison and 27 it is not apparent whether Petitioner is on probation. However, the Court does not need to reach this issue because the Petition is successive. 28 1 section is filed in the district court, the applicant shall move in the 2 appropriate court of appeals for an order authorizing the district court 3 to consider the application. 4 | 28 U.S.C. § 2244(b) (emphasis added). 5 The Petition now pending constitutes a second and/or successive petition 6 || challenging the same conviction as Petitioner’s prior habeas petition in Central 7 | District Case No. 16-cv-02222, within the meaning of 28 U.S.C. § 2244(b). Thus, it 8 || was incumbent on Petitioner under § 2244(b)(3)(A) to secure an order from the Ninth 9 | Circuit authorizing the District Court to consider his new claims prior to the filing of 10 | the instant Petition. Petitioner’s failure to secure an order from the Ninth Circuit 11 | deprives this Court of subject matter jurisdiction. Cooper v. Calderon, 274 F.3d 12 | 1270, 1274 (9th Cir. 2001), cert. denied, 538 U.S. 984 (2003). 13 IT IS THEREFORE ORDERED that this action be summarily dismissed 14 | pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States 15 | District Courts. 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 18 DATED: March 16, 2020 = sea f Bip. de) 20 MICHAEL Wi. FITZGERALD UNITED STATES DISTRICT JUDGE 22 | Presented by: 3) Trou €. Seat 24 | KAREN E. SCOTT 45 | United States Magistrate Judge 26 27 28