Opinion
22-432
10-13-2022
Doshmen Johnson, Petitioner, v. Trent Allen, Acting Warden, Respondent.
NOT FOR PUBLICATION
Submitted September 22, 2022 San Francisco, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Application to File Second or Successive Petition Under 28 U.S.C. § 2254
Before: GRABER, FRIEDLAND, MILLER, Circuit Judges.
MEMORANDUM
Doshmen Johnson, who is serving a life sentence for shooting and killing a man outside a liquor store, filed an application for leave to file a second or successive habeas petition in district court. Johnson submitted a first federal habeas petition six years ago, alleging that his trial counsel was ineffective for failing to investigate and present cell phone records indicating that Johnson was far from the liquor store when the shooting occurred. The district court concluded that Johnson was not entitled to relief, holding that the California Supreme Court's denial of his state petition was not unreasonable under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d). If permitted to file a subsequent petition, Johnson would again bring an ineffective assistance claim, but he would supplement that claim with evidence developed during a recent evidentiary hearing in state court. We review Johnson's application under AEDPA, 28 U.S.C. § 2244(b)(1).
The petition Johnson seeks to file is barred by AEDPA. According to AEDPA, "[a] claim presented in a second or successive habeas corpus application under [§] 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. § 2244(b)(1). Generally, a "second or successive" petition is one that challenges the same judgment based on the same factual predicate as a petition filed earlier, so long as the earlier petition has been adjudicated on the merits. Goodrum v. Busby, 824 F.3d 1188, 1193-94 (9th Cir. 2016); see United States v. Jackson, 21 F.4th 1205, 1212 (9th Cir. 2022); Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018). Under this standard, the petition that Johnson seeks to file is clearly "second or successive." It seeks relief from the same state court judgment as his earlier petition does-his conviction for murder. It rests on the same factual predicate-his counsel's preparation for and performance at trial. And the district court adjudicated the earlier petition on the merits. Johnson urges us to construe his application as a motion to amend his earlier habeas petition instead, but we are unable to do so. Johnson cannot amend his earlier petition, because that petition is no longer pending before the district court. See Balbuena v. Sullivan, 980 F.3d 619, 635- 37 (9th Cir. 2020), cert. denied sub nom. Balbuena v. Cates, 141 S.Ct. 2755 (2021).
DENIED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).