Louie Giannini v. San Bernardino Superior Court

• Court: District Court, C.D. California
• Decided: July 24, 2023
• Docket: 5:23-cv-01304
• Status: Unknown

Opinion

1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LOUIE GIANNINI, Case No. 5:23-cv-01304-JVS-KES 12 Petitioner, 13 v. ORDER DISMISSING HABEAS 14 SAN BERNARDINO SUPERIOR PETITION AS SUCCESSIVE 15 COURT, 16 Respondent. 17 18 19 I. 20 BACKGROUND 21 Louie Giannini (“Petitioner”) has filed a petition for writ of habeas corpus. 22 (“Petition” at Dkt. 1.) Although he does not explicitly state what convictions or 23 sentences he is challenging, he discusses criminal court proceedings from 1996. 24 (See, e.g., id. at 5.) He therefore appears to be challenging the 1997 convictions 25 and sentence imposed in San Bernardino County Superior Court case no. 26 FSB07496.1 27 1 The Court takes judicial notice of the records of the San Bernardino County 28 Superior Court, which are available online at: https://www.sb- 1 He argues that those convictions are illegal and unconstitutional because the 2 trial court violated his Sixth Amendment right to counsel by: (1) “forcing” him to 3 proceed pro se after a Faretta2 hearing and without holding a competency hearing 4 (Pet. at 5-6, 13-14), and (2) “forcing” appointed counsel to do the closing argument 5 for Petitioner and represent him at the sentencing hearing, despite a “year-long 6 conflict of interest” with Petitioner (id. at 20-21, 28-29). He also alleges that 7 appointed counsel performed ineffectively. (Id. at 34-35.) 8 II. 9 DISCUSSION 10 Petitioner has already filed at least three federal habeas petitions under 28 11 U.S.C. § 2254 challenging these convictions, some of which raised similar or 12 identical claims. Giannini v. Thompson, 2:09-cv-06357-JVS-VBK (C.D. Cal. Feb. 13 24, 2010) (dismissing petition as successive); Giannini v. Hartley, No. 5:09-cv- 14 02253-JVS-VBK (C.D. Cal. Dec. 19, 2009) (dismissing petition as successive); 15 Giannini v. Terhune, No. 2:01-cv-00647-DT-VBK (C.D. Cal. Oct. 4, 2002) 16 (dismissing petition with prejudice). 17 Although the Petition states that it is brought under 28 U.S.C. § 2241 (see, 18 e.g., Pet. at 3, 6), it is properly considered under 28 U.S.C. § 2254 because 19 Petitioner is in custody under a state court criminal judgment and is challenging 20 that judgment. See Phillips v. Davey, 659 F. App’x 933, 934 (9th Cir. 2016) 21 (finding “the district court correctly construed [the] petition under § 2241 as one 22 court.org/divisions/civil-general-information/court-case-information-and- 23 document-sales, as well as the records of prior federal cases. See Fed. R. Evid. 201(b)(2); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court 24 may take judicial notice of its own records in other cases, as well as the records of 25 an inferior court in other cases.”). 26 2 Faretta v. California, 422 U.S. 806 (1975) (holding that a defendant in a 27 state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so). 28 1 under § 2254 since [the petitioner] is ‘in custody pursuant to the judgment of a 2 State court’”). 3 Generally, a petitioner may file only one § 2254 petition challenging a state 4 court judgment. See 28 U.S.C. § 2244(b). “Second or successive” petitions are 5 barred unless the petitioner successfully “moves in the appropriate court of appeals 6 for an order authorizing the district court to consider” the second or successive 7 petition. 28 U.S.C. § 2244(b)(3)(A). The court of appeals may grant such 8 authorization if: 9 (A) the applicant shows that the claim relies on a new rule of 10 constitutional law, made retroactive to cases on collateral review by 11 the Supreme Court, that was previously unavailable; or 12 (B)(i) the factual predicate for the claim could not have been 13 discovered previously through the exercise of due diligence; and 14 (ii) the facts underlying the claim, if proven and viewed in light of the 15 evidence as a whole, would be sufficient to establish by clear and 16 convincing evidence that, but for constitutional error, no reasonable 17 factfinder would have found the applicant guilty of the underlying 18 offense. 19 28 U.S.C. § 2244(b)(2). 20 In the present case, Petitioner has filed multiple § 2254 petitions challenging 21 the same 1997 judgment from the San Bernardino Superior Court, and he does not 22 state that he has obtained authorization from the Ninth Circuit Court of Appeals to 23 file a new § 2254 petition. Without such authorization, this Court lacks jurisdiction 24 over the Petition. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001), cert. 25 denied, 538 U.S. 984 (2003). 26 “If an unauthorized second or successive section 2254 petition … is 27 submitted to the district court, the district court may, in the interests of justice, refer 28 1 || it to the Court of Appeals.” Ninth Circuit Local Rule 22-3(a).? Here, however, a 2 | referral to the Ninth Circuit is not in the interests of justice. Petitioner does not 3 || acknowledge that this is a successive petition or make any attempt to explain why 4 | his claims meet the test for authorizing successive petitions under 28 U.S.C. 5 | § 2244(b)(2). If he wishes to seek Ninth Circuit authorization, he would need to 6 || file a new motion in the Ninth Circuit that addresses those issues. 7 III. 8 CONCLUSION 9 IT IS THEREFORE ORDERED that the Petition (Dkt. 1) and this action are 10 | DISMISSED without prejudice for lack of jurisdiction, and Judgment shall be 11 | entered accordingly. 12 13 C) [faa 14 | DATED: July 24, 2023 Ye late C/ le □ 15 /JAMES V. SELNA / 6 UNITED STATES DISTRICT JUDGE

M7 Presented by: 18 19 TlomsE Ses KAREN E. SCOTT 20 | United States Magistrate Judge 21 22 23 24 25 26 7 3 The Ninth Circuit Local Rules are available online at: 38 https://cdn.ca9.uscourts.gov/datastore/uploads/rules/frap.pdf.