Opinion
NO. CV 12-2091 -VAP (AGR)
03-21-2012
VICENSON D. EDWARDS, Petitioner, v. TERRI GONZALEZ, Warden, Respondent.
OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
On March 12, 2012, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254. The Petition challenges his conviction in Los Angeles County Superior Court in 1998. (Petition at 2.)
I.
PROCEDURAL BACKGROUND
Pursuant to Fed. R. Evid. 201, this Court takes judicial notice of the records in two prior federal habeas corpus actions brought by Petitioner in the Central District of California: Edwards v. Terhune, Case No. CV 01-1608-GHK (SH) ("Edwards I") and Edwards v. Marshall, CV 06-6568-VAP (AGR) ("Edwards II"). (See also Petition at 1.)
On August 3,1998, a Los Angeles County jury convicted Petitioner of possession of a firearm by a felon and evading a police officer. (Petition at 2). On January 13,1999, Petitioner was sentenced to 53 years to life.
In Edwards I, a Report and Recommendation ("R&R I") was issued on the merits on September 7, 2001; on October 2, 2001, the R&R I was adopted and judgment was entered dismissing the petition with prejudice. Edwards I, Dkt. Nos. 23, 26, 27.) On May 31, 2002, the Ninth Circuit denied Petitioner's request for a certificate of appealability. Id., Dkt. No. 34.
Attached to the instant Petition as Exhibit 1 is R&R I.
In Edwards II, after a motion to dismiss, a Report and Recommendation ("R&R II") was issued on July 3, 2007, recommending the petition be dismissed with prejudice as time-barred. Edwards II, Dkt. No. 26. On August 16, 2007, the R&R II was adopted, and judgment was entered dismissing the petition with prejudice. (Dkt. Nos. 30-31.) Petitioner did not appeal.
Respondent filed a motion to dismiss on April 17, 2007, based on expiration of the statute of limitations. Edwards II, Dkt. No. 21.
Contrary to Petitioner's assertion (see Petition, Attachment A at 1), the decision that his second federal habeas petition was time-barred was not "procedural." See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (dismissal of a section 2254 habeas petition for failure to comply with the statute of limitations renders subsequent petitions second or successive for purposes of 28 U.S.C. § 2244(b)).
Attached to the Petition as Exhibit 2 is R&R II.
With respect to the underlying conviction, on June 6, 2000, the California Court of Appeal affirmed the judgment. R&R II at 2. On August 23, 2000, the California Supreme Court summarily denied the petition for review. Id. Between October 9, 2003, and September 13, 2006, Petitioner filed multiple habeas petitions in the California courts, the last of which was denied on September 13, 2006, by the California Supreme Court with citations indicating the petition was untimely. Id. at 2-3.
According to Petitioner, sometime after early 2011, he filed habeas petitions in the California Court of Appeal and the California Supreme Court. (Petition Attachment A at 1.) According to the online docket at California Appellate Court Case Information, on January 28, 2011, Petitioner filed a habeas petition in the California Court of Appeal, which was denied on February 9, 2011, in Case No. B230505; and on June 13, 2011, Petitioner filed a habeas petition in the California Supreme Court, which was denied on October 26, 2011, in Case No. S193977, with citations indicating the petition was untimely.
The Petition involves the same conviction and sentence as in Edwards I and Edwards II.
II.
DISCUSSION
The Petition was filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, the Court applies the AEDPA in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997).
The AEDPA provides, in pertinent part: "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)(3)(A). A district court does not have jurisdiction to consider a "second or successive" petition absent authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) ("When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.") (citation and quotation marks omitted).
Here, the Petition is a second or successive petition that challenges the same conviction and sentence imposed by the same judgment of the state court as in Edwards I and Edwards II. Petitioner argues he is not challenging the conviction or sentence. Instead, he contends his appellate counsel on direct appeal was ineffective, Petitioner learned of the ineffective assistance in early 2011, and Petitioner seeks only "that the Judgment on Appeal be vacated and that the direct appeal be reinstated." (Petition, Attachment A at 1-2.) Petitioner relies on Johnson v. United States, 362 F.3d 636 (9th Cir. 2004) for the proposition that a federal habeas petition that "does not attack the conviction and sentence, is not counted as a second or successive petition." (Petition, Attachment A at 2.) Petitioner has it backwards. In Johnson, the Ninth Circuit held that "a successful 2255 petition, utilized as a device to obtain an out-of-time appeal, does not render a subsequent collateral challenge 'second' or 'successive' under AEDPA." Johnson, 362 F.3d at 638.
Petitioner alleges that his counsel on appeal presented "inaccurate facts" related to a motion to exclude in the trial court. (Petition, Attachment A at 3.) Petitioner also alleges his appellate counsel failed to argue that trial counsel was ineffective. (Id. at 4.)
Petitioner does not explain why he did not learn of the basis for his ineffective assistance of counsel claim until 2011.
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A federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). A court must also dismiss a second or successive petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, retroactive, constitutional right or (2) the factual basis of the claim was not previously discoverable through due diligence, and those new facts establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). It is not the district court, however, that decides whether a second or successive petition meets the requirements permitting a petitioner to file a second or successive petition. Rather, "[b]efore 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)(3)(A); see also Felker v. Turpin, 518 U.S. 651, 657, 116 S. Ct. 2333,135 L. Ed. 2d 827 (1996). Absent authorization from the Ninth Circuit, this court lacks jurisdiction over the instant Petition. Cooper, 274 F.3d at 1274.
Rule 4 of the Rules Governing Section 2254 Cases in the United States Courts provides that "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Here, summary dismissal is warranted.
III.
ORDER
IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction.
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VIRGINIA A. PHILLIPS
United States District Judge