Opinion
8:21-cv-00897-DMG-JC
12-29-2021
GRACIELA A. CORTEZ, Petitioner, v. MICHAEL PALLARES, Warden, Respondent.
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND ACTION WITHOUT PREJUDICE
DOLLY M. GEE, UNITED STATES DISTRICT JUDGE.
I. SUMMARY
On May 13, 2021, petitioner Graciela A. Cortez, a California prisoner who is proceeding pro se, formally filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Current Federal Petition”) pursuant to 28 U.S.C. § 2254. The Current Federal Petition challenges a 2004 state judgment in Orange County Superior Court Case No. 03CF0250 (“State Case” or “State Conviction”), asserting claims of insufficiency of the evidence and trial court error relating to jury instructions and the improper consolidation of/failure to sever charges at trial.
Based on the record (including facts as to which this Court takes judicial notice as detailed below) and the applicable law, the Current Federal Petition and this action are dismissed without prejudice for lack of jurisdiction because petitioner did not obtain the requisite authorization from the Court of Appeals to file a successive petition. Further, the Clerk of the Court is directed to refer the Current Federal Petition to the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) pursuant to Ninth Circuit Rule 22-3(a).
Ninth Circuit Rule 22-3(a) provides in pertinent part: “Any petitioner seeking authorization to file a second or successive 2254 petition . . . in the district court must file an application in the Court of Appeals demonstrating entitlement to such leave under 28 U.S.C. § 2254 . . . . If a second or successive petition . . . is mistakenly submitted to the district court, the district court shall refer it to the [C]ourt of [A]ppeals.”
The procedural history set forth in this section is derived from the Current Federal Petition and supporting documents and the public docket and court records in the following Central District of California (“CDCA”), Ninth Circuit, and United States Supreme Court cases of which this Court takes judicial notice: (1) Graciela A. Cortez v. Deborah Patrick, CDCA Case No. 8:08-cv-01020-PSG-JC (“First Federal Action”); (2) Graciela A. Cortez v. Deborah Patrick, Ninth Circuit Case No. 12-55369 (“Ninth Circuit Action”); and (3) Graciela A. Cortez v. Deborah Patrick, United States Supreme Court Case No. 12-10463 (“Supreme Court Action”). See Fed.R.Evid. 201; Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (court may take judicial notice of undisputed matters of public record including documents on file in federal or state courts).
A. The State Case and Related State Court Proceedings
On December 8, 2004, after a joint trial with co-defendant Daniel Parra, a jury found petitioner (who was charged and tried under her alias, “Elizabeth Nava”) guilty of crimes related to the burglary, robbery, and assault of Bert Madison, and the separate burglary and murder of Charles George. Specifically, the jury found petitioner guilty of: (1) count 1 - conspiracy to commit burglary (Cal. Penal Code § 182(a)(1)); (2) count 2 - first degree burglary of Madison (Cal. Penal Code §§ 459, 460(a)); (3) count 3 - first degree robbery of Madison (Cal. Penal Code §§ 211, 212.5(a), 213(a)(1)); (4) count 4 - assault with a deadly weapon, a flashlight, on Madison (Cal Penal Code §245(a)(1)); (5) count 5 - first degree burglary of George (Cal. Penal Code §§ 459, 460(a)); and (6) count 7 first degree murder of George (Cal. Penal Code § 187(a)). The jury also found true allegations that the murder occurred during the course of a burglary or attempted burglary of George and during the course of an attempted robbery of George as charged in count 7 (Cal. Penal Code §§ 190.2(a)(17)(A), 190.2(a)(17)(G)).
On petitioner's motion, the trial court dismissed count 6, which charged petitioner with robbing George, due to the absence of evidence to suggest that a “taking” had actually occurred.
As indicated in note 3 supra, the trial court granted petitioner's motion for acquittal on the charge that she robbed George because there was insufficient evidence that a taking had actually occurred. But the trial court denied a motion to dismiss the related special circumstance allegation that George was killed during the course of an attempted robbery, finding there was sufficient evidence from which the jury could determine that George was murdered during the commission of an attempted robbery.
On January 7, 2005, the trial court sentenced petitioner to life without the possibility of parole in state prison.
On May 10, 2006, the California Court of Appeal modified the sentence in non-pertinent part and otherwise affirmed the judgment in a reasoned decision. On September 12, 2006, upon rehearing, the California Court of Appeal vacated its earlier decision and issued a new reasoned decision modifying the sentence in non-pertinent part and otherwise affirming the judgment. On December 20, 2006, the California Supreme Court denied review without comment.
Petitioner thereafter sought, and was denied habeas relief in the Orange County Superior Court, the California Court of Appeal, and the California Supreme Court.
Petitioner's Petition for Recall of Sentence and Resentencing Hearing pursuant to Senate Bill 1437 is currently pending in the Orange County Superior Court.
“Senate Bill 1437 was enacted to ‘amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.'” People v. Martinez, 31 Cal.App. 5th 719, 723, as modified on denial of reh'g (Feb. 13, 2019), review denied (May 1, 2019) (citation omitted). The legislation amended California Penal Code sections 188 and 189 and added section 1170.95, “which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions.” People v. Martinez, 31 Cal.App. 5th at 722. As of January 1, 2019, any person convicted of felony murder under a natural and probable consequences doctrine prior to the change in law can petition the sentencing court to vacate the conviction and resentence them on any remaining counts, if they could not have been convicted of murder because of the changes to California Penal Code sections 188 and 189. See Cal. Penal Code § 1170.95 (permitting state courts to vacate convictions of aiders and abettors of murder who were not the actual killer and whose convictions were obtained under a theory of felony murder or as the natural and probable consequence of committing some other felony).
B. First Federal Action, Ninth Circuit Action and Supreme Court Action
On September 12, 2008, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“First Federal Petition”) pursuant to 28 U.S.C. § 2254, challenging her conviction in the State Case and alleging: (1) there was insufficient evidence to support her convictions and certain true findings on special circumstance allegations and that such convictions and findings were otherwise legally unsound; (2) the trial court erred in multiple respects; (3) the prosecution engaged in misconduct in multiple respects; and (4) petitioner's trial counsel rendered ineffective assistance.
On December 12, 2011, this Court accepted the United States Magistrate Judge's Report and Recommendation recommending denial of the First Federal Petition on the merits and dismissal of the First Federal Action with prejudice. Judgment was entered accordingly on December 14, 2011.
On December 18, 2012, the Ninth Circuit denied petitioner's request for a certificate of appealability.
On October 7, 2013, the United States Supreme Court denied petitioner's petition for a writ of certiorari.
C. Current Federal Petition
As noted above, on May 13, 2021, petitioner formally filed the Current Federal Petition which again challenges the judgment in the State Case. The record does not reflect that petitioner has obtained authorization from the Ninth Circuit to file the Current Federal Petition in District Court.
A search of the court's PACER system does not reflect that petitioner has been granted leave to file a second or successive petition by the Ninth Circuit.
III. DISCUSSION
Before a habeas petitioner may file a second or successive petition in a district court, he must apply to the appropriate court of appeals for an order authorizing the district court to consider the application. Burton v. Stewart, 549 U.S. 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(3)(A)). This provision “creates a ‘gatekeeping' mechanism for the consideration of second or successive applications in district court.” Felker v. Turpin, 518 U.S. 651, 657 (1996); see also Reyes v. Vaughn, 276 F.Supp.2d 1027, 1028-30 (C.D. Cal. 2003) (discussing applicable procedures in Ninth Circuit). A district court lacks jurisdiction to consider the merits of a second or successive habeas petition in the absence of proper authorization from a court of appeals. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998)), cert. denied, 538 U.S. 984 (2003).
The court of appeals may authorize the filing of a second or successive petition only if it determines that the petition makes a prima facie showing that at least one claim within the petition satisfies the requirements of 28 U.S.C. Section 2244(b), i.e., that a claim which was not presented in a prior application (1) relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court; or (2) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence and the facts underlying the claim would be sufficient to establish that, but for constitutional errors, no reasonable factfinder would have found the applicant guilty of the underlying offense. Nevius v. McDaniel, 104 F.3d 1120, 1120-21 (9th Cir. 1997); Nevius v. McDaniel, 218 F.3d 940, 945 (9th Cir. 2000).
A second or subsequent habeas petition is not considered “successive” if the initial habeas petition was dismissed for a technical or procedural reason, rather than on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-487 (2000) (second habeas petition not “successive” if initial habeas petition dismissed for failure to exhaust state remedies); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-645 (1998) (second habeas petition not “successive” if claim raised in first habeas petition dismissed as premature); but see McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (dismissal on statute of limitations grounds constitutes disposition on the merits rendering subsequent petition “second or successive”); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir.) (dismissal on procedural default grounds constitutes disposition on the merits rendering subsequent petition “second or successive”), cert. denied, 546 U.S. 884 (2005); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995) (dismissal for failure to prosecute treated as judgment on the merits) (citations omitted).
The First Federal Petition in the First Federal Action was denied on its merits - not for a technical or procedural reason. Accordingly, the Current Federal Petition is successive. Since petitioner filed the Current Federal Petition without authorization from the Ninth Circuit, this Court lacks jurisdiction to consider it.
IV. ORDER
IT IS THEREFORE ORDERED that the Current Federal Petition and this action are dismissed without prejudice. The Clerk of the Court is directed to refer the Current Federal Petition to the Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a).