Lewis C. Monigan v. S. Sherman

• Court: District Court, C.D. California
• Decided: January 31, 2020
• Docket: 2:20-cv-00537
• Status: Unknown

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LEWIS C. MONIGAN, Case No. 2:20-cv-00537-JVS (GJS)

12 Petitioner, ORDER: DISMISSING PETITION AS SECOND OR SUCCESSIVE; 13 v. DENYING CERTIFICATE OF APPEALABILITY; AND 14 S. SHERMAN, WARDEN, REFERRING PETITION PURSUANT TO NINTH CIRCUIT 15 Respondent. RULE 22-3(a)

17 On September 16, 2010, Petitioner filed a 28 U.S.C. § 2254 habeas petition in 18 another District, which thereafter was transferred to this District and assigned Case 19 No. 2:10-cv-07663-JVS (OP) (the “First Petition”). The First Petition challenged 20 Petitioner’s conviction sustained in 2009, in Santa Barbara County Superior Court 21 Case No. 1284146, and his related sentence (collectively, the “State Conviction”). 22 On November 8, 2011, the First Petition action was dismissed without prejudice 23 based on Petitioner’s failure to exhaust his available state remedies. Petitioner did 24 not appeal. 25 On January 23, 2014, Petitioner filed another Section 2254 habeas petition in this 26 District, which was assigned Case No. 2:14-cv-00551-JVS (MAN) (the “Second 27 Petition”). The Second Petition again challenged the State Conviction and raised 28 claims alleging that counsel provided ineffective assistance and that Petitioner’s 2 sentence was extreme and grossly disproportionate to the underlying crimes and 3 therefore violated the Eighth Amendment’s prohibition on cruel and unusual 4 punishments. On May 19, 2015, the Second Petition action was dismissed with 5 prejudice on the ground that it was untimely. Petitioner did not appeal.1 6 Over four and a half years passed. Through this action, Petitioner has filed a 7 third Section 2254 habeas petition challenging the State Conviction [Dkt. 1, 8 “Petition”]. The instant Petition raises a single claim, namely, the claim previously 9 raised in the Second Petition action that Petitioner’s sentence is excessive and 10 grossly disproportionate and therefore constitutes cruel and unusual punishment in 11 violation of the Eighth Amendment. 12 The dockets for the Ninth Circuit show that Petitioner has not sought permission 13 from the Ninth Circuit to file the instant Petition, much less obtained leave to do so. 14 15 DISCUSSION 16 State habeas petitioners generally may file only one federal habeas petition 17 challenging a particular state conviction and/or sentence. See, e.g., 28 U.S.C. § 18 2244(b)(1) (courts must dismiss a claim presented in a second or successive petition 19 when that claim was presented in a prior petition) and § 2244(b)(2) (with several 20 exceptions, courts must dismiss a claim presented in a second or successive petition 21 when that claim was not presented in a prior petition). “A habeas petition is second 22 or successive . . . if it raises claims that were or could have been adjudicated on the 23 merits” in an earlier Section 2254 petition. McNabb v. Yates, 576 F.3d 1028, 1029 24 (9th Cir. 2009). 25 Even when Section 2244(b) provides a basis for pursuing a second or successive 26

27 1 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has taken judicial notice of its records and files, as well as of the dockets of the United States Court of Appeals for the 28 Ninth Circuit available electronically through the PACER system. 2 2 Court must first obtain authorization from the Ninth Circuit before filing any such 3 second or successive petition. 28 U.S.C. § 2244(b)(3). The Ninth Circuit “may 4 authorize the filing of the second or successive [petition] only if it presents a claim 5 not previously raised that satisfies one of the two grounds articulated in § 6 2242(b)(2).” Burton v. Stewart, 549 U.S. 147, 152 (2007). 7 In the Second Petition action, Petitioner sought Section 2254 relief based on the 8 same State Conviction at issue here and raised the same sentencing claim that he 9 now asserts. The untimeliness of the Second Petition action “presents a ‘permanent 10 and incurable’ bar to federal review,” and the dismissal of the Second Petition action 11 “constitutes a disposition on the merits” for purposes of Section 2244(b). McNabb, 12 576 F.3d at 1030 (citation omitted). The present Petition, thus, is second or 13 successive within the meaning of Section 2244(b). See id. (holding “that dismissal 14 of a section 2254 habeas petition for failure to comply with the statute of limitations 15 renders subsequent petitions second or successive for purposes of” Section 2244(b)); 16 in accord Murray v. Greiner, 394 F.3d 78, 79 (2d Cir. 2005); Altman v. Benik, 337 17 F.3d 764, 766 (7th Cir. 2003). 18 Whether or not the claim alleged in the Petition may, as a prima facie matter, 19 satisfy the requisites of 28 U.S.C. § 2244(b)(2) is a question that must be presented 20 to and resolved by the Ninth Circuit, not this District Court. Petitioner, however, 21 has not obtained permission from the Ninth Circuit to bring a second or successive 22 Section 2254 petition raising the claim alleged in the Petition. This Court therefore 23 lacks jurisdiction to consider the Petition. 28 U.S.C. § 2244(b); see also Burton, 24 549 I.S. at 157 (district court lacks jurisdiction to consider the merits of a second or 25 successive petition absent prior authorization from the circuit court). 26 Accordingly, IT IS ORDERED that: the Petition is DISMISSED; and Judgment 27 shall be entered dismissing this action without prejudice. 28 In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in 3 1 || the United States District Courts, the Court has considered whether a certificate of 2 || appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. 3 || McDaniel, 120 S. Ct. 1595, 1604 (2000). The Court concludes that a certificate of 4 || appealability is unwarranted, and thus, a certificate of appealability is DENIED. 5 IT IS FURTHER ORDERED that the Clerk of the Court shall refer the Petition 6 || to the Ninth Circuit pursuant to Ninth Circuit Rule 22—3(a). 7 IT IS SO ORDERED. cy = [faa 8 oe \ A j Rin □□ 9 || DATED: January 31, 2020 ff JAMES V.SELNA I UNITED STATES DISTRICT JUDGE 12 13 || PRESENTED BY: 14 15 by 7 16 || GAIL J. STANDISH 4 UNITED STATES MAGISTRATE JUDGE

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