1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 MICHAEL REINHOLD MAMMOTH, ) No. ED CV 21-1641-JAK (PLA) ) 13 Petitioner, ) ORDER DISMISSING SUCCESSIVE ) PETITION WITHOUT PREJUDICE 14 v. ) ) 15 ROSEMARY NDOH, ) ) 16 Respondent. ) ) 17 18 I. 19 BACKGROUND 20 On September 24, 2021, petitioner filed a Petition for Writ of Habeas Corpus by a Person 21 in State Custody pursuant to 28 U.S.C. § 2254 (the “Petition”). On August 23, 2013, petitioner 22 was convicted by a Riverside County Superior Court jury of forcible sodomy on a child under the 23 age of fourteen, in violation of California Penal Code section 269(a)(3), two counts of forcible oral 24 copulation on a child under the age of fourteen, in violation of California Penal Code section 25 269(a)(4), five counts of sexual intercourse/sodomy with a child under the age of ten, in violation 26 of California Penal Code section 288.7, ten counts of forcible lewd acts on a child, in violation of 27 California Penal Code section 288, and one count of possessing child pornography, in violation 28 1 (PLA), ECF No. 30 at 2). Petitioner was sentenced to 137 years to life in state prison. (See id). 2 The Petition challenges petitioner’s 2013 conviction on the following grounds: trial counsel 3 conceded petitioner’s guilt in violation of McCoy v. Louisiana, 138 S. Ct. 1500 (2018)1; petitioner 4 had the right to maintain his innocence; petitioner’s right to present a complete defense was 5 violated; petitioner’s right to confrontation was violated; and the superior court denied petitioner’s 6 McCoy claim without holding an evidentiary hearing. (ECF No. 1 at 5-6). 7 On December 28, 2016, in case number ED CV 16-2648-JAK (PLA), petitioner filed an 8 earlier habeas petition in this Court (the “2016 Petition”). (Case No. ED CV 16-2648, ECF No. 1). 9 The 2016 Petition also challenged petitioner’s 2013 conviction, and contained the following 10 claims: (1) the evidence was insufficient to support the verdict; (2) the trial court violated 11 petitioner’s rights to due process and a fair trial by allowing the introduction of certain evidence; 12 (3) petitioner’s Fifth Amendment right to silence was violated; (4) petitioner was deprived of his 13 right to counsel; and (5) trial counsel was ineffective. (Id., ECF No. 30 at 4-5). Judgment was 14 entered on September 6, 2017, dismissing the 2016 Petition with prejudice. (Id., ECF Nos. 46, 15 47). A certificate of appealability was denied by the District Judge and the Ninth Circuit. (Id., ECF 16 Nos. 53, 54). 17 18 II. 19 DISCUSSION 20 “A petition that challenges the same judgment as a prior habeas petition is considered 21 second or successive.” Christian v. Thomas, 982 F.3d 1215, 1221 (9th Cir. 2020); see also 22 Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam) (federal habeas petition is 23 successive if it raises claims that were or could have been adjudicated on the merits in a previous 24 petition). 25 26 1 In McCoy, the Supreme Court held that a defendant’s Sixth Amendment rights are 27 violated if defense counsel concedes guilt over the defendant’s express objections to doing so. 28 138 S. Ct. at 1512. 1 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “creates a 2 ‘gatekeeping’ mechanism for the consideration of second or successive applications in district 3 court.” Felker v. Turpin, 518 U.S. 651, 657, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996). Under 4 this procedure, an applicant must file in the court of appeals a motion for leave to file a successive 5 habeas application in the district court. See 28 U.S.C. § 2244(b)(3)(A). In turn, the court of 6 appeals may authorize the filing of a successive petition if: 7 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was 8 previously unavailable; or 9 (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and 10 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as 11 a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant 12 guilty of the underlying offense. 13 28 U.S.C. § 2244(b)(2)(A), (B). 14 Here, because the instant Petition is challenging the same judgment as the 2016 Petition, 15 the instant Petition is successive. See Christian, 982 F.3d at 1221. Although it does not appear 16 that petitioner satisfies any of the exceptions listed in 28 U.S.C. § 2244(b)(2)(A)2 or (B), even if 17 he could make such a showing, he is still required to request and obtain authorization from the Ninth 18 Circuit before filing a successive petition. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 19 152-53, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007) (AEDPA requires petitioner to receive authorization 20 from the court of appeals before filing a second habeas petition). Because there is no indication that 21 petitioner has obtained such authorization from the Ninth Circuit, the Court is without jurisdiction to 22 entertain the Petition. See Burton, 549 U.S. at 153; Cooper, 274 F.3d at 1274 (“‘When the AEDPA 23 is in play, the district court may not, in the absence of proper authorization from the court of appeals, 24 consider a second or successive habeas application.’”). 25 26 2 In particular, the Court notes that petitioner’s McCoy claim does not qualify under § 27 2244(b)(2)(A), as “the Supreme Court has not made McCoy v. Louisiana retroactive to cases on 28 collateral review.” Christian, 982 F.3d at 1215. 1 Accordingly, dismissal of the Petition without prejudice as successive is appropriate.3 2 3 III. 4 CERTIFICATE OF APPEALABILITY 5 Under Rule 11(a) of the Rules Governing § 2254 Cases, a court must grant or deny a 6 certificate of appealability (“COA”) when entering a final order adverse to the petitioner. See also 7 28 U.S.C. § 2253(c). 8 A petitioner may not appeal a final order in a federal habeas corpus proceeding without 9 first obtaining a COA. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A COA may issue “only 10 if . . . [there is] a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 11 2253(c)(2). A “substantial showing . . . includes showing that reasonable jurists could debate 12 whether (or, for that matter, agree that) the petition should have been resolved in a different 13 manner or that the issues presented were ‘adequate to deserve encouragement to proceed 14 further.’” Slack v.
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1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 MICHAEL REINHOLD MAMMOTH, ) No. ED CV 21-1641-JAK (PLA) ) 13 Petitioner, ) ORDER DISMISSING SUCCESSIVE ) PETITION WITHOUT PREJUDICE 14 v. ) ) 15 ROSEMARY NDOH, ) ) 16 Respondent. ) ) 17 18 I. 19 BACKGROUND 20 On September 24, 2021, petitioner filed a Petition for Writ of Habeas Corpus by a Person 21 in State Custody pursuant to 28 U.S.C. § 2254 (the “Petition”). On August 23, 2013, petitioner 22 was convicted by a Riverside County Superior Court jury of forcible sodomy on a child under the 23 age of fourteen, in violation of California Penal Code section 269(a)(3), two counts of forcible oral 24 copulation on a child under the age of fourteen, in violation of California Penal Code section 25 269(a)(4), five counts of sexual intercourse/sodomy with a child under the age of ten, in violation 26 of California Penal Code section 288.7, ten counts of forcible lewd acts on a child, in violation of 27 California Penal Code section 288, and one count of possessing child pornography, in violation 28 1 (PLA), ECF No. 30 at 2). Petitioner was sentenced to 137 years to life in state prison. (See id). 2 The Petition challenges petitioner’s 2013 conviction on the following grounds: trial counsel 3 conceded petitioner’s guilt in violation of McCoy v. Louisiana, 138 S. Ct. 1500 (2018)1; petitioner 4 had the right to maintain his innocence; petitioner’s right to present a complete defense was 5 violated; petitioner’s right to confrontation was violated; and the superior court denied petitioner’s 6 McCoy claim without holding an evidentiary hearing. (ECF No. 1 at 5-6). 7 On December 28, 2016, in case number ED CV 16-2648-JAK (PLA), petitioner filed an 8 earlier habeas petition in this Court (the “2016 Petition”). (Case No. ED CV 16-2648, ECF No. 1). 9 The 2016 Petition also challenged petitioner’s 2013 conviction, and contained the following 10 claims: (1) the evidence was insufficient to support the verdict; (2) the trial court violated 11 petitioner’s rights to due process and a fair trial by allowing the introduction of certain evidence; 12 (3) petitioner’s Fifth Amendment right to silence was violated; (4) petitioner was deprived of his 13 right to counsel; and (5) trial counsel was ineffective. (Id., ECF No. 30 at 4-5). Judgment was 14 entered on September 6, 2017, dismissing the 2016 Petition with prejudice. (Id., ECF Nos. 46, 15 47). A certificate of appealability was denied by the District Judge and the Ninth Circuit. (Id., ECF 16 Nos. 53, 54). 17 18 II. 19 DISCUSSION 20 “A petition that challenges the same judgment as a prior habeas petition is considered 21 second or successive.” Christian v. Thomas, 982 F.3d 1215, 1221 (9th Cir. 2020); see also 22 Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam) (federal habeas petition is 23 successive if it raises claims that were or could have been adjudicated on the merits in a previous 24 petition). 25 26 1 In McCoy, the Supreme Court held that a defendant’s Sixth Amendment rights are 27 violated if defense counsel concedes guilt over the defendant’s express objections to doing so. 28 138 S. Ct. at 1512. 1 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “creates a 2 ‘gatekeeping’ mechanism for the consideration of second or successive applications in district 3 court.” Felker v. Turpin, 518 U.S. 651, 657, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996). Under 4 this procedure, an applicant must file in the court of appeals a motion for leave to file a successive 5 habeas application in the district court. See 28 U.S.C. § 2244(b)(3)(A). In turn, the court of 6 appeals may authorize the filing of a successive petition if: 7 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was 8 previously unavailable; or 9 (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and 10 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as 11 a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant 12 guilty of the underlying offense. 13 28 U.S.C. § 2244(b)(2)(A), (B). 14 Here, because the instant Petition is challenging the same judgment as the 2016 Petition, 15 the instant Petition is successive. See Christian, 982 F.3d at 1221. Although it does not appear 16 that petitioner satisfies any of the exceptions listed in 28 U.S.C. § 2244(b)(2)(A)2 or (B), even if 17 he could make such a showing, he is still required to request and obtain authorization from the Ninth 18 Circuit before filing a successive petition. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 19 152-53, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007) (AEDPA requires petitioner to receive authorization 20 from the court of appeals before filing a second habeas petition). Because there is no indication that 21 petitioner has obtained such authorization from the Ninth Circuit, the Court is without jurisdiction to 22 entertain the Petition. See Burton, 549 U.S. at 153; Cooper, 274 F.3d at 1274 (“‘When the AEDPA 23 is in play, the district court may not, in the absence of proper authorization from the court of appeals, 24 consider a second or successive habeas application.’”). 25 26 2 In particular, the Court notes that petitioner’s McCoy claim does not qualify under § 27 2244(b)(2)(A), as “the Supreme Court has not made McCoy v. Louisiana retroactive to cases on 28 collateral review.” Christian, 982 F.3d at 1215. 1 Accordingly, dismissal of the Petition without prejudice as successive is appropriate.3 2 3 III. 4 CERTIFICATE OF APPEALABILITY 5 Under Rule 11(a) of the Rules Governing § 2254 Cases, a court must grant or deny a 6 certificate of appealability (“COA”) when entering a final order adverse to the petitioner. See also 7 28 U.S.C. § 2253(c). 8 A petitioner may not appeal a final order in a federal habeas corpus proceeding without 9 first obtaining a COA. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A COA may issue “only 10 if . . . [there is] a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 11 2253(c)(2). A “substantial showing . . . includes showing that reasonable jurists could debate 12 whether (or, for that matter, agree that) the petition should have been resolved in a different 13 manner or that the issues presented were ‘adequate to deserve encouragement to proceed 14 further.’” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) 15 (citation omitted); see also Sassounian v. Roe, 230 F.3d 1097, 1101 (9th Cir. 2000). “When the 16 district court denies a habeas petition on procedural grounds without reaching the prisoner’s 17 underlying constitutional claim, a COA should issue when . . . jurists of reason would find it 18 debatable whether the petition states a valid claim of the denial of a constitutional right and that 19 jurists of reason would find it debatable whether the district court was correct in its procedural 20 ruling.” Id. at 484. 21 3 If petitioner wishes to make a successive habeas application, he must file a 22 “Motion for Order Authorizing District Court to Consider Second or Successive Petition Pursuant to 28 U.S.C. § 2244(b)(3)(A)” directly with the Ninth Circuit Court of Appeals. Until 23 the Ninth Circuit issues such an order, any direct or implied request for a second or 24 successive petition for writ of habeas corpus is barred by § 2244(b) and must be dismissed without prejudice to petitioner’s right to seek authorization from the Ninth Circuit to file the 25 petition. If petitioner obtains permission from the Ninth Circuit Court of Appeals to file a 26 successive petition, he should file a new petition for writ of habeas corpus. He should not file an amended petition in this action or use the case number from this action because the 27 instant action is being closed today. If petitioner files a new petition, the Court will give that 28 petition a new case number. 1 Here, reasonable jurists would find that the Court correctly determined the Petition should 2|| be dismissed as successive. Accordingly, a certificate of appealability is denied. 3 IV. 4 CONCLUSION 5 IT IS THEREFORE ORDERED that the Petition is dismissed without prejudice as successive. A certificate of appealability is also denied. 7 C) m NX 8| DATED: October 6, 2021 JOHN A. KRONSTADT 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28