Opinion
NO. CV 12-10781-VBF (MAN)
01-02-2013
RICARDO MEJIA, Petitioner, v. DANIEL PARAMO - WARDEN (RJDCF), Respondent.
ORDER DISMISSING PETITION
AS SECOND OR SUCCESSIVE
AND DENYING A CERTIFICATE
OF APPEALABILITY
Petitioner, a California state prisoner, filed a habeas petition, pursuant to 28 U.S.C. § 2254, on December 18, 2012 ("Petition"). The Petition is the second habeas petition filed by Petitioner in this Court stemming from his 2002 conviction and 2003 sentence in Los Angeles Superior Court Case No. BA235662 (the "State Conviction").
Under the Rules Governing Section 2254 Cases in the United States District Courts, a habeas petition filed by a prisoner in state custody "must" be summarily dismissed " [i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . . ." Rule 4, 28 U.S.C. foll. § 2254. For the reasons set forth below, the Petition must be, and is, DISMISSED second or successive, pursuant to 28 U.S.C. § 2244(b).
BACKGROUND
On March 16, 2005, Petitioner filed a Section 2254 habeas petition in Case No. CV 05-1907-VBF (MAN) (the "First Action"). The First Action petition arose out of the same State Conviction on which the present Petition is based. The First Action petition raised two claims, which alleged that: (1) the evidence was insufficient to support Petitioner's conviction for the assault on victim Smith, to establish that a bullet from the gun Petitioner fired killed anyone, and to establish that, if Petitioner did shoot victim Hines, Petitioner's culpability was not negated or reduced by self-defense and/or heat of passion (First Action Petition at 5, 20-38, and 56-63); and (2) the trial court erred by failing to give a heat of passion defense instruction to the jury, denying Petitioner his right to a jury trial and due process (First Action Petition at 5, 39-44, and 64-69). The First Action was resolved adversely to Petitioner on the merits, and habeas relief was denied by Judgment dismissing the First Action, with prejudice, entered on July 22, 2008. Petitioner appealed, and the Ninth Circuit denied a certificate of appealability on May 26, 2009 (Case No. 08-56251).
Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has taken judicial notice of its records and files, as well as the dockets for the United States Court of Appeals for the Ninth Circuit available electronically through the PACER system.
The instant Petition alleges two claims challenging the state courts' refusal to grant Petitioner habeas and/or mandamus relief with respect to the restitution and fines imposed by the state trial court in 2003, as part of Petitioner's sentence for the State Conviction. In Ground One, Petitioner contends that the state trial court's denial of Petitioner's habeas petition violated due process, because Petitioner was entitled to the requested relief, that is, to the modification of his 2003 sentence, because the trial court did not follow proper procedures when it imposed the mandatory restitution and fine amounts as part of Petitioner's sentence. Petitioner also appears to contend that his counsel provided ineffective assistance by failing to adequately oppose the imposition of such restitution and fines. In Ground Two, Petitioner contends that the orders of the California Court of Appeal and the California Supreme Court denying Petitioner's habeas petition violated due process, because both state courts improperly relied on state procedural bars in denying relief. Petitioner asks this Court to: reject the state courts' imposition of procedural bars; consider his claims on their merits; and modify Petitioner's 2003 sentence by reducing the amount of the restitution and fines imposed by the state trial court, namely, from $32,000.00 to $200.00.
A review of the Ninth Circuit dockets shows that Petitioner has not sought or obtained leave to file a second or successive Section 2254 habeas petition in this Court.
DISCUSSION
State habeas petitioners generally may file only one federal habeas petition challenging a particular state conviction and/or sentence. See, e.g., 28 U.S.C. § 2244(b)(1) (courts must dismiss a claim presented in a second or successive petition when that claim was presented in a prior petition) and § 2244(b)(2) (with several exceptions not applicable here, courts must dismiss a claim presented in a second or successive petition when that claim was not presented in a prior petition). "A habeas petition is second or successive . . . if it raises claims that were or could have been adjudicated on the merits" in an earlier Section 2254 petition. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).
In those instances when Section 2244(b) provides a basis for pursuing a second or successive Section 2254 habeas petition, state habeas petitioners seeking relief in this district court must first obtain authorization from the Ninth Circuit before filing any such second or successive petition. 28 U.S.C. § 2244(b)(3). The Ninth Circuit "may authorize the filing of the second or successive [petition] only if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2242 (b) (2)." Burton v. Stewart, 549 U.S. 147, 153, 127 S. Ct. 793, 796 (2007).
By the First Action, Petitioner sought Section 2254 relief based on the same State Conviction at issue here, and his habeas petition was resolved adversely to him on its merits. His present challenge to the validity of the restitution and fines imposed in connection with his State Conviction does not rest on newly-discovered evidence or a new rule of constitutional law. Accordingly, the current Petition is second or successive within the meaning of Section 2244(b).
Moreover, the claims alleged in the Petition are not cognizable. Petitioner's contention that the state courts violated due process by the manner in which they denied him habeas relief cannot be considered, because it is well-established that federal habeas relief is not available to redress errors in state post-conviction proceedings. Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam)("a. petition alleging errors in the state post-conviction review process is not addressable through [federal] habeas corpus proceedings"); see also Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998) (federal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings"); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997) (errors committed during state post-conviction proceedings are not cognizable in a federal habeas action); Villafuerte v. Stewart, 111 F.3d 616, 632 n.7 (9th Cir. 1997)(claim that petitioner "was denied due process in his state habeas corpus proceedings" was not cognizable on federal habeas review). An attack on a petitioner's state post-conviction proceedings "is an attack on a proceeding collateral to the detention and not the detention itself." Nicholas v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) . "Errors or defects in the state post-conviction proceeding do not . . . render a prisoner's detention unlawful or raise constitutional questions cognizable in [federal] habeas corpus proceedings." Williams v. Missouri, 640 F.2d 140, 143-44 (8th Cir. 1981).
Even if Petitioner's claims are treated as substantive attacks on the restitution/fines aspect of his 2003 sentence and his counsel's related performance, they nonetheless are not cognizable, because the Court lacks jurisdiction to consider them. The federal habeas statute does not provide jurisdiction over a claim challenging a state court's restitution order and/or counsel's performance related to the entry of such an order, even when the petitioner is incarcerated. See Bailey v. Hill, 599 F.3d 976, 980 (9th Cir. 2010) (the federal habeas statute's "in custody" requirement is not met when a petition alleges that counsel was ineffective based on a failure to object to a restitution order; Section 2254 does not confer jurisdiction over a state prisoner's challenge to the noncustodial portion of his sentence, such as a restitution order).
The instant Petition also appears to be substantially untimely.
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As Petitioner has not obtained permission from the Ninth Circuit to bring a second or successive petition, this Court lacks jurisdiction to consider the instant Petition. 28 U.S.C. § 2244(b); see also Burton, 549 U.S. at 157, 127 S. Ct. at 799 (district court lacks jurisdiction to consider the merits of a second or successive petition absent prior authorization from the circuit court). Accordingly, IT IS ORDERED that: the Petition is DISMISSED; and Judgment shall be entered dismissing this action without prejudice.
In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has considered whether a certificate of appealability is warranted in this case. See 28 U.S.C. § 2253(c) (2); Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S. Ct. 1595, 1604 (2000). The Court concludes that a certificate of appealability is unwarranted, and thus, a certificate of appealability is DENIED.
IT IS SO ORDERED.
_______________________
VALERIE BAKER FAIRBANK
UNITED STATES DISTRICT JUDGE
PRESENTED BY: ____________________
MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE