1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LEON L. MEYERS, Case No. 22-cv-02266-HSG
8 Petitioner, ORDER OF DISMISSAL 9 v.
10 KEN CLARK, 11 Respondent.
12 13 Before the Court is the above-titled petition for a writ of habeas corpus, filed pursuant to 14 28 U.S.C. § 2254 by petitioner Leon L. Meyers, challenging the validity of his state court 15 sentence. Dkt. No. 1. Petitioner has paid the filing fee. Dkt. No. 4. The habeas petition is now 16 before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing 17 Section 2254 Cases. For the reasons set forth below, the petition is DISMISSED as second or 18 successive. 19 BACKGROUND 20 According to the petition, on December 18, 2009, Petitioner was sentenced in Alameda 21 County Superior Court to thirty-three years to life for assault with a deadly weapon on a police 22 officer (Cal. Penal Code § 245(c)), battery on a person with whom Petitioner had a dating 23 relationship (Cal. Penal Code § 243(e)(1)), and resisting a police officer resulting in serious bodily 24 injury (Cal. Penal Code § 148.10). Dkt. No. 1 at 2. 25 DISCUSSION 26 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 27 custody pursuant to the judgment of a State court only on the ground that he is in custody in 1 district court considering an application for a writ of habeas corpus shall “award the writ or issue 2 an order directing the respondent to show cause why the writ should not be granted, unless it 3 appears from the application that the applicant or person detained is not entitled thereto.” 28 4 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are 5 vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 6 908 F.2d 490, 491 (9th Cir.1990). For the reasons set forth below, the Court dismisses this 7 petition as second or successive. 8 I. Legal Standard 9 A federal habeas petition is “second or successive” within the meaning of § 2244 “if the 10 facts underlying the claim occurred by the time of the initial petition, [] and if the petition 11 challenges the same state court judgment as the initial petition.” Brown v. Muniz, 889 F.3d 661, 12 667 (9th Cir. 2018) (citing Panetti v. Quarterman, 551 U.S. 930, 945 (2007), and Magwood v. 13 Patterson, 561 U.S. 320, 333 (2010)); see also Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) 14 (habeas petition second or successive if raises claims that were or could have been adjudicated on 15 merits in prior petition). A petitioner’s subsequent petition challenging claims that were 16 unexhausted at the time he filed his first petition should be considered “second or successive.” 17 See Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding that district court lacked jurisdiction to 18 review petitioner’s second habeas corpus petition upon finding that there was no basis for 19 supposing, as Ninth Circuit did, that petitioner who elected to proceed to adjudication of his 20 exhausted claims regarding his conviction in initial petition while appeal on his resentencing was 21 still pending might later assert that subsequent petition on his sentencing claims was not “second 22 or successive”). 23 “A claim presented in a second or successive habeas corpus application under section 2254 24 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). “A claim 25 presented in a second or successive habeas corpus application under section 2254 that was not 26 presented in a prior application shall be dismissed” unless,
27 (A) the applicant shows that the claim relies on a new rule of 1 (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; 2 and
3 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to 4 establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have 5 found the applicant guilty of the underlying offense. 6 28 U.S.C. § 2244(b)(2). Even if a petitioner can demonstrate that he qualifies for one of these 7 exceptions, he must seek authorization from the court of appeals before filing his new petition 8 with the district court. 28 U.S.C. § 2244(b)(3) (“Before a second or successive application 9 permitted by this section is filed in the district court, the applicant shall move in the appropriate 10 court of appeals for an order authorizing the district court to consider the application.”). The 11 district court is “without power” to entertain a second or successive petition unless the petitioner 12 first receives authorization from the court of appeals. Chades v. Hill, 976 F.3d 1055, 1056-57 (9th 13 Cir. 2020). 14 II. Analysis 15 Petitioner has filed a prior petition challenging this conviction and sentence, Meyers v. 16 Hedgpeth, No. C 11-cv-5327 TEH (PR) (“Meyers I”). Meyers I was filed on or about November 17 2, 2011. The operative Meyers I petition raised 54 claims. Meyers I, Dkt. Nos. 26, 29, 52, 60. 44 18 of the 54 claims were dismissed for failure to exhaust state court remedies as required by 28 19 U.S.C. § 2254(b)-(c). Dkt. No. 65. The remaining 10 claims were ultimately denied on the merits 20 and judgment was entered in favor of Respondent. Meyers I, Dkt. Nos. 86, 87. Petitioner 21 appealed. Murray I, Dkt. No. 89, 106. That appeal is now closed, the Ninth Circuit having 22 declined to issue a Certificate of Appealability, finding that the Meyers I petition failed to state 23 any federal constitutional claims debatable among jurists of reason. Murray I, Dkt. No. 111. 24 The instant petition raises the following claim. Petitioner’s due process rights were 25 violated because the state courts failed to follow their own procedures when they denied his 26 motion for disqualification pursuant to Cal. Civ. Proc. § 170.1 and his petition for a writ of 27 mandamus. See generally Dkt. No. 1. Petitioner likely knew of these claims in 2010 to 2011. 1 on the grounds that he was represented by court-appointed counsel. Meyers I, Dkt. No. 54-2 at 79. 2 The Court presumes that the California Supreme Court denied Petitioner’s appeal of this denial 3 within a year thereafter. 4 This petition is “second or successive” within the meaning of § 2244 because (1) the facts 5 underlying the claims occurred in or around 2010 through 2011 and Meyers I was filed after these 6 facts occurred and (2) this petition challenges the same state court judgment as challenged in 7 Meyers I. Brown, 889 F.3d at 667; Magwood, 561 U.S. at 333.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LEON L. MEYERS, Case No. 22-cv-02266-HSG
8 Petitioner, ORDER OF DISMISSAL 9 v.
10 KEN CLARK, 11 Respondent.
12 13 Before the Court is the above-titled petition for a writ of habeas corpus, filed pursuant to 14 28 U.S.C. § 2254 by petitioner Leon L. Meyers, challenging the validity of his state court 15 sentence. Dkt. No. 1. Petitioner has paid the filing fee. Dkt. No. 4. The habeas petition is now 16 before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing 17 Section 2254 Cases. For the reasons set forth below, the petition is DISMISSED as second or 18 successive. 19 BACKGROUND 20 According to the petition, on December 18, 2009, Petitioner was sentenced in Alameda 21 County Superior Court to thirty-three years to life for assault with a deadly weapon on a police 22 officer (Cal. Penal Code § 245(c)), battery on a person with whom Petitioner had a dating 23 relationship (Cal. Penal Code § 243(e)(1)), and resisting a police officer resulting in serious bodily 24 injury (Cal. Penal Code § 148.10). Dkt. No. 1 at 2. 25 DISCUSSION 26 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 27 custody pursuant to the judgment of a State court only on the ground that he is in custody in 1 district court considering an application for a writ of habeas corpus shall “award the writ or issue 2 an order directing the respondent to show cause why the writ should not be granted, unless it 3 appears from the application that the applicant or person detained is not entitled thereto.” 28 4 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are 5 vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 6 908 F.2d 490, 491 (9th Cir.1990). For the reasons set forth below, the Court dismisses this 7 petition as second or successive. 8 I. Legal Standard 9 A federal habeas petition is “second or successive” within the meaning of § 2244 “if the 10 facts underlying the claim occurred by the time of the initial petition, [] and if the petition 11 challenges the same state court judgment as the initial petition.” Brown v. Muniz, 889 F.3d 661, 12 667 (9th Cir. 2018) (citing Panetti v. Quarterman, 551 U.S. 930, 945 (2007), and Magwood v. 13 Patterson, 561 U.S. 320, 333 (2010)); see also Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) 14 (habeas petition second or successive if raises claims that were or could have been adjudicated on 15 merits in prior petition). A petitioner’s subsequent petition challenging claims that were 16 unexhausted at the time he filed his first petition should be considered “second or successive.” 17 See Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding that district court lacked jurisdiction to 18 review petitioner’s second habeas corpus petition upon finding that there was no basis for 19 supposing, as Ninth Circuit did, that petitioner who elected to proceed to adjudication of his 20 exhausted claims regarding his conviction in initial petition while appeal on his resentencing was 21 still pending might later assert that subsequent petition on his sentencing claims was not “second 22 or successive”). 23 “A claim presented in a second or successive habeas corpus application under section 2254 24 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). “A claim 25 presented in a second or successive habeas corpus application under section 2254 that was not 26 presented in a prior application shall be dismissed” unless,
27 (A) the applicant shows that the claim relies on a new rule of 1 (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; 2 and
3 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to 4 establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have 5 found the applicant guilty of the underlying offense. 6 28 U.S.C. § 2244(b)(2). Even if a petitioner can demonstrate that he qualifies for one of these 7 exceptions, he must seek authorization from the court of appeals before filing his new petition 8 with the district court. 28 U.S.C. § 2244(b)(3) (“Before a second or successive application 9 permitted by this section is filed in the district court, the applicant shall move in the appropriate 10 court of appeals for an order authorizing the district court to consider the application.”). The 11 district court is “without power” to entertain a second or successive petition unless the petitioner 12 first receives authorization from the court of appeals. Chades v. Hill, 976 F.3d 1055, 1056-57 (9th 13 Cir. 2020). 14 II. Analysis 15 Petitioner has filed a prior petition challenging this conviction and sentence, Meyers v. 16 Hedgpeth, No. C 11-cv-5327 TEH (PR) (“Meyers I”). Meyers I was filed on or about November 17 2, 2011. The operative Meyers I petition raised 54 claims. Meyers I, Dkt. Nos. 26, 29, 52, 60. 44 18 of the 54 claims were dismissed for failure to exhaust state court remedies as required by 28 19 U.S.C. § 2254(b)-(c). Dkt. No. 65. The remaining 10 claims were ultimately denied on the merits 20 and judgment was entered in favor of Respondent. Meyers I, Dkt. Nos. 86, 87. Petitioner 21 appealed. Murray I, Dkt. No. 89, 106. That appeal is now closed, the Ninth Circuit having 22 declined to issue a Certificate of Appealability, finding that the Meyers I petition failed to state 23 any federal constitutional claims debatable among jurists of reason. Murray I, Dkt. No. 111. 24 The instant petition raises the following claim. Petitioner’s due process rights were 25 violated because the state courts failed to follow their own procedures when they denied his 26 motion for disqualification pursuant to Cal. Civ. Proc. § 170.1 and his petition for a writ of 27 mandamus. See generally Dkt. No. 1. Petitioner likely knew of these claims in 2010 to 2011. 1 on the grounds that he was represented by court-appointed counsel. Meyers I, Dkt. No. 54-2 at 79. 2 The Court presumes that the California Supreme Court denied Petitioner’s appeal of this denial 3 within a year thereafter. 4 This petition is “second or successive” within the meaning of § 2244 because (1) the facts 5 underlying the claims occurred in or around 2010 through 2011 and Meyers I was filed after these 6 facts occurred and (2) this petition challenges the same state court judgment as challenged in 7 Meyers I. Brown, 889 F.3d at 667; Magwood, 561 U.S. at 333. Plaintiff has not specified whether 8 he previously raised these claims in Meyers I and the Court will not pore through the operative 9 petition in Meyers I and try to determine if one of Petitioner’s 54 claims in Meyers I raised the 10 claims raised here. Regardless, these claims must be dismissed as second or successive. 11 If these claims were presented in Meyers I, they must be dismissed pursuant to 28 U.S.C. 12 § 2244(b)(1). 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive habeas 13 corpus application under section 2254 that was presented in a prior application shall be 14 dismissed.”). If these claims were not presented in Meyers I, because these claims were known to 15 Petitioner at the time that Meyers I was filed, these claims must also be dismissed because they are 16 not based on a new rule of constitutional law, made retroactive to cases on collateral review by the 17 Supreme Court, that was previously unavailable; the factual predicate of these claims was known 18 to Petitioner previously; and these claims allege procedural or legal error and would not establish 19 by clear and convincing evidence that no reasonable factfinder would have found Petitioner guilty 20 of the charged crimes. Finally, even if these claims were unexhausted at the time that Meyers I 21 was filed, this petition remains second or successive because Petitioner proceeded with the 22 exhausted claims in Meyers I. See Burton, 549 U.S. at 153 (where petitioner withdraws mixed 23 petition, exhausts remaining claims, and returns to district court with fully exhausted petition, this 24 later-filed petition is not second or successive, but if petitioner proceeded on exhausted claims in 25 mixed petition and receives adjudication on merits, later-filed petitions raising new claims or 26 raising claims unexhausted at time of initial petition may be dismissed as second or successive).1 27 1 Petitioner has not shown that he has received authorization from the Court of Appeals 2 authorizing the district court to consider this second or successive petition. See 28 U.S.C. § 3 2244(b)(3)(A). Accordingly, this petition must be dismissed. /d. 4 CONCLUSION 5 The petition is DISMISSED as second or successive, and for failure to obtain authorization 6 || from the Court of Appeals authorizing the district court to consider this second or successive 7 || petition. A certificate of appealability will not issue. Petitioner has not shown “that jurists of 8 || reason would find it debatable whether the petition states a valid claim of the denial of a 9 constitutional right and that jurists of reason would find it debatable whether the district court was 10 correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 11 IT IS SO ORDERED. a 12 || Dated:6/14/2022
Alnpurrd 5 HAYWOOD S. GILLIAM, JR. 14 United States District Judge 15 16
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Z 18 19 20 21 22 23 24 25 26 07 speaking, violations of state law, without more, do not state a denial of due process or a cognizable claim for federal habeas relief. Swarthout v. Cooke, 562 U.S. 216, 222 (2011); see 28 also Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (petitioner may not “transform a state- law issue into a federal one merely by asserting a violation of due process”).