Tracy L. Stewart v. Kathleen Allison

Opinion

Case 2:22-cv-01402-DSF-KES Document 4 Filed 03/07/22 Page 1 of 4 Page ID #:84

1 2 O 3 4 5 6 7 TRACY L. STEWART, Case No. 2:22-cv-01402-DSF-KES Petitioner, ORDER DISMISSING HABEAS v. PETITION AS SUCCESSIVE KATHLEEN ALLISON, Secretary, et al., Respondent.

I. BACKGROUND In July 2019, Petitioner Tracy L. Stewart (“Petitioner”) filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. (Stewart v. Johnson, Central District of California case no. 2:19-cv-06400-KES [“Stewart III”], Dkt. 1.) The Petition challenged Petitioner’s 1986 convictions for multiple counts of kidnapping and robbery. (Id., p. 2.) The Court ordered Respondent to respond to the Petition. (Id. at Dkt. 4 [“Order Requiring Response”].) The Order Requiring Response noted that while Petitioner had filed a previous federal habeas petition in 2014, it was unclear whether the Stewart III Petition was successive, because the California Court of 1 Case 2:22-cv-01402-DSF-KES Document 4 Filed 03/07/22 Page 2 of 4 Page ID #:85

1 Appeal had ordered modifications to Petitioner’s sentence that might have resulted 2 in a new judgment. (Id. at Dkt. 19-2, Lodged Document [“LD”] 2.) 3 Respondent moved to vacate the Order Requiring Response, arguing that the 4 Stewart III Petition was successive because Petitioner had filed a prior federal 5 petition in Stewart v. State of California, case no. 90-cv-2337-IH-K, denied on the 6 merits (“Stewart I”). (See Stewart III at Dkt. 18; see also LD 6.) In supplemental 7 briefing, Respondent noted that Petitioner had filed a second federal habeas petition 8 in Stewart v. McComber, case no. 2:14-cv-01747-DSF-DFM, which was dismissed 9 as untimely (Stewart II”). Respondent also explained that while the California Court of Appeal modified Petitioner’s judgment in 1986, it did not remand the case for re-sentencing, and therefore no new judgment was entered after 1986. (Stewart III at Dkt. 25, pp. 6-7, citing LD 2, p 18.) As a result, both of Petitioner’s prior federal petitions challenged the same judgment as his Petition in Stewart III. The Court dismissed the Stewart III Petition without prejudice as successive. (Id. at Dkt. 28.) II. In February 2022, the Court received from Petitioner a fourth Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 filed in the above-captioned case. (Dkt. 1 [“Stewart IV”].) This Petition, too, challenges Petitioner’s 1986 convictions. (Id., p. 2.) The Stewart IV Petition is governed by 28 U.S.C. § 2244(b), which provides in relevant part as follows: (b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. 2 Case 2:22-cv-01402-DSF-KES Document 4 Filed 03/07/22 Page 3 of 4 Page ID #:86

1 (2) A claim presented in a second or successive habeas corpus 2 application under section 2254 that was not presented in a prior 3 application shall be dismissed unless-- 4 (A) the applicant shows that the claim relies on a new rule of 5 constitutional law, made retroactive to cases on collateral review by 6 the Supreme Court, that was previously unavailable; or 7 (B)(i) the factual predicate for the claim could not have been 8 discovered previously through the exercise of due diligence; and 9 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as 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 guilty of the underlying offense. (3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b) (emphasis added). It is apparent from the face of the Petition that it attacks the same convictions and sentence as challenged in the Stewart I, II, and III federal petitions. Thus, it was incumbent on Petitioner under § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing this Court to consider the Petition before filing it in this Court. Petitioner’s failure to do so deprives the Court of subject matter jurisdiction to consider the Petition. See Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). Because the Petition is successive, the Court will dismiss the Petition without prejudice to the filing of a new action if and when Petitioner obtains permission to file a successive petition. / / / 3 Case 2:22-cv-01402-DSF-KES Document 4 Filed 03/07/22 Page4of4 Page ID #:87

1 IT IS THEREFORE ORDERED that the Petition is DISMISSED without 2 prejudice as successive pursuant to 28 U.S.C. § 2244(b). 4 DATED: March 7, 2022 i} ) 5 Honorable Dale Fischer’ 6 UNITED STATES DISTRICT JUDGE

Presented by: Sats KAREN E. SCOTT 1] UNITED STATES MAGISTRATE JUDGE