Opinion
Case No. CV 15-4320 DSF (MRW)
07-16-2015
LAMONT SHEPARD, Petitioner, v. MIKE D. BITER, Warden, Respondent.
ORDER DISMISSING SUCCESSIVE HABEAS ACTION
The Court vacates the reference of this action to the Magistrate Judge and summarily dismisses the action pursuant to the successive habeas petition rule in 28 U.S.C. § 2244.
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This is a state habeas action. In 2011, Petitioner was convicted of murder involving a 1995 drive-by shooting. The trial court sentenced Petitioner to a term of 29 years to life to be served consecutive to Petitioner's sentence in another homicide case.
Petitioner unsuccessfully sought habeas relief for his conviction in this Court. Shepard v. Gipson, CV 12-2803 DSF (MRW) (C.D. Cal.). Among the claims Petitioner asserted on habeas review was that he was "actually innocent" of the killing. The Court denied this claim, noting that the evidence against Petitioner at trial included his recorded confession to the killing. (Docket # 53 at 8.) The Ninth Circuit Court of Appeals subsequently denied Petitioner's request for a certificate of appealability of that decision.
The Court separately dismissed Petitioner's untimely habeas petition regarding his other murder conviction. Shepard v. Gipson, CV 12-3026 DSF (MRW) (C.D. Cal.).
Petitioner commenced the present habeas action in this Court. He again alleges that he is "actually innocent" of the murder charge. Petitioner contends that he recently discovered evidence that he was incarcerated on the date of the killing. Tied to this, he also reasserts an argument that his conviction was defective because the correct date of the shooting was different than the date alleged in the initial charging document. The current petition was not accompanied by a certificate from the Court of Appeals authorizing a successive habeas action pursuant to 28 U.S.C. § 2244(b).
As the Court noted in Petitioner's original habeas action, the prosecutor verbally amended the criminal complaint at Petitioner's preliminary earing to state the correct date of the crime. (Docket # 53 at 17.) Petitioner's current argument remains premised on the unamended written charge. --------
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If it "appears from the application that the applicant or person detained is not entitled" to habeas relief, a court may dismiss a habeas action without ordering service on the responding party. 28 U.S.C. § 2243; see also Rule 4 of Rules Governing Section 2254 Cases in United States District Courts (petition may be summarily dismissed if petitioner plainly not entitled to relief); Local Civil Rule 72-3.2 (magistrate judge may submit proposed order for summary dismissal to district judge "if it plainly appears from the face of the petition [ ] that the petitioner is not entitled to relief").
Under federal law, a state prisoner is generally required to present all constitutional challenges to a state conviction in a single federal action. A habeas petition is second or successive - and subject to dismissal under 28 U.S.C. § 2244(b) - when the petition "raises claims that were or could have been adjudicated on the merits" in the first action. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). A prisoner must obtain authorization from the Court of Appeals to pursue such a successive habeas petition before the new petition may be filed in district court. 28 U.S.C. § 2244(b)(3); Burton v. Stewart, 549 U.S. 147 (2007) (dismissing successive petition for failure to obtain authorization from court of appeals).
The current petition challenges a conviction for which Petitioner previously sought federal habeas relief. His claim of actual innocence and his challenge to the date stated in the criminal complaint have already been adjudicated. Petitioner failed to obtain permission from the federal appellate court to bring the present habeas action. On this basis, the current petition is subject to summary dismissal. See 28 U.S.C. § 2244(b); Burton, 549 U.S. 147; McNabb, 576 F.3d at 1029.
Moreover, Petitioner's "new evidence" claim is insufficient to excuse his successive filing. A "credible showing of actual innocence may allow a prisoner to pursue his constitutional claims on the merits notwithstanding" the forfeiture of those claims under state law or based on AEDPA's time limits. McQuiggin v. Perkins, ___ U.S. ___, 133 S. Ct. 1924, 1933-34 (2013). However, a prisoner still has the considerable preliminary burden of demonstrating that, "in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 537 (2006); Schlup v. Delo, 513 U.S. 298, 327 (1995).
Petitioner's bare assertion that he is "actually [and] factually innocent" is not supported by the jumbled, unauthenticated records attached to his petition. Those materials do not demonstrate that he was incarcerated on the date of the killing. Nothing in the petition constitutes the type of "new evidence" sufficient to carry Petitioner's high burden. House, 547 U.S. at 537.
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The current action is successive and untimely. The record establishes that Petitioner did not have permission from the appellate court to file this action after his previous federal habeas claim was rejected. The petition is subject to summary dismissal without service on the California Attorney General. The action is therefore DISMISSED.
IT IS SO ORDERED. Dated: 7/16/15
/s/_________
HON. DALE S. FISCHER
UNITED STATES DISTRICT JUDGE