Opinion
No. CV 19-1899-PSG (PLA)
03-25-2019
GREGORIO ORTIZ, Petitioner, v. RICK HILL, Warden, Respondent.
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION;
REFERRING THE PETITION TO THE NINTH CIRCUIT COURT OF APPEALS PURSUANT TO NINTH CIRCUIT RULE 22-3(a); AND
DENYING A CERTIFICATE OF APPEALABILITY
DISMISSAL OF HABEAS PETITION WITHOUT PREJUDICE
Gregorio Ortiz ("petitioner") initiated this action on March 14, 2019, by filing a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition" or "Pet."), along with supporting exhibits. The Petition generally alleges that in 2015 the Los Angeles County District Attorney's Office created a new liberty interest under the Fourteenth Amendment when it created a "Conviction Review Unit," to address credible claims of actual innocence made by convicted felons. (Pet. at 5, 10, 36-37). He contends that he was denied his liberty interest when, on August 10, 2017, the District Attorney's Office denied his request for review of his 2001 conviction in Los Angeles County Superior Court case number KA051285, for robbery (Cal. Penal Code § 211), and his resulting sentence of 61 years-to-life in prison. (Pet at 2, 5, 29-34, 36-37, 38-51). Additionally, petitioner alleges that the state courts abused their discretion when they denied petitioner's subsequent petitions for habeas corpus. (See Pet. at 6; see also Pet. at 52, 72-73, 74, 84, 96-98). In the instant Petition, among other things, he also appears to raise claims of fraud upon the court and judicial bias with respect to his 2001 conviction. (Id.). Notwithstanding petitioner's attempt to characterize his claims as arising from a newly-created liberty interest, the Petition on its face challenges his 2001 conviction in Los Angeles County Superior Court case number KA051285.
The Court observes that in addition to this action, petitioner has filed numerous habeas petitions in this Court directed to the same 2001 conviction, with many asserting his claim of actual innocence, as follows:
Case No. CV 04-324-AHM (VBK) (dismissed as unexhausted)
Case No. CV 05-52-PSG (VBK) (dismissed on the merits)
Case No. CV 06-3072-AHM (VBK) (dismissed as untimely)
Case No. CV 10-4470-AHM (VBK) (dismissed as successive)
Case No. CV 10-4965-AHM (VBK) (dismissed as successive)
Case No. CV 11-8515-JVS (VBK) (dismissed as successive)
Case No. CV 12-1985-PSG (VBK) (dismissed as successive)
Case No. CV 13-3477-PSG (VBK) (dismissed as successive)
Case No. CV 14-2083-PSG (VBK) (dismissed as successive)
Case No. CV 15-6674-PSG (DTB) (dismissed as successive)
Case No. CV 16-1754-PSG (DTB) (dismissed as successive)
Case No. CV 16-4894-PSG (DTB) (dismissed as successive) The Court also observes that on February 24, 2015, in Ninth Circuit Case number 14-80180, the Ninth Circuit entered a pre-filing order requiring the following: (1) petitioner must include the following sentence in any future filing: "THIS NOTICE OF APPEAL IS FILED SUBJECT TO PRE-FILING REVIEW ORDER No. 14-80180"; (2) he must include a copy of the district court order from which he is appealing, along with a short and plain statement of the facts or law on which he will rely for purposes of the appeal, and a statement that he has not previously appealed this order or raised this issue in a prior appeal; (3) if he complies with (1) and (2), then the Ninth Circuit will review the submissions and determine whether they merit further review; (4) the pre-filing review order "shall remain in effect until further order of the court"; and (5) petitioner may petition to have the pre-filing review order lifted no earlier than May 1, 2017. Ninth Cir. Case No. 14-80180, ECF No. 4. There is no evidence that petitioner ever petitioned to have that pre-filing order removed; in fact, it appears that petitioner did not appeal any of this Court's post-2015 orders dismissing his petition as successive.
In its Order to petitioner to show cause why it should not enter a pre-filing review order governing future actions, the Ninth Circuit noted that since 2005 petitioner had filed more than 19 actions in that court, and that petitioner's "practice of burdening this court with meritless litigation justifies careful oversight of [his] future litigation in this court." Ninth Cir. Case No. 14-80180, ECF No. 2. Petitioner is advised that in light of the substantial burden that his thirteen filings since 2004 have imposed on this Court (nine of which have been filed since 2010), filing any similarly successive petitions in this Court in the future may result in an order requiring him to show cause why a vexatious litigant pre-filing order is not appropriate here as well. --------
A federal habeas petition is successive if it raises claims that were or could have been adjudicated on the merits in a previous petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that a claim presented in a second or successive federal habeas petition that was presented in a prior application "shall be dismissed" (28 U.S.C. § 2244(b)(1)), and that a claim not presented in a prior petition shall be dismissed unless:
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or28 U.S.C. § 2244(b)(2)(A), (B). / /
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Furthermore, "[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).
There is no doubt that the instant Petition constitutes a second and/or successive petition challenging the same conviction as petitioner's numerous prior habeas petitions, within the meaning of 28 U.S.C. § 2244(b). The fact that petitioner is asserting a claim that he suggests did not arise until 2015, as well as that he is actually innocent, does not alter this conclusion. Petitioner does not contend that his claims rely on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; and, it appears to the Court that even though petitioner is seeking to present a new claim in the instant Petition with respect to his claimed liberty interest, he also raises a claim of actual innocence for which the factual predicate could have previously been discovered through the exercise of due diligence, and he in fact has previously attempted to assert an actual innocence claim. Moreover, even if the instant claims satisfied any of the exceptions found in 28 U.S.C. § 2244(b)(2)(A) or § 2244(b)(2)(B) that would allow for a successive petition (and it does not appear that petitioner has satisfied any of those provisions), petitioner nevertheless is still required to seek and receive authorization from the Ninth Circuit before filing a successive petition. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 152-53, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007) (AEDPA requires petitioner to receive authorization from the Court of Appeals before filing a second habeas petition). There is no indication that petitioner has obtained such permission from the Ninth Circuit. It therefore appears that the Court is without jurisdiction to entertain the current Petition under 28 U.S.C. § 2244(b). See Burton, 549 U.S. at 153; Cooper, 274 F.3d at 1274 ("'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.'").
"REFERRAL" OF HABEAS PETITION TO NINTH CIRCUIT
Ninth Circuit Rule 22-3(a) states, in pertinent part, that "[i]f a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals." Therefore, to the extent the Petition was "mistakenly submitted" to this Court, the Petition must be referred to the court of appeals. While it is unclear whether the district court may both "refer" the Petition to the Ninth Circuit and, at the same time, dismiss the Petition, the Court concludes that simultaneous referral and dismissal is appropriate. See Cielto v. Hedgpeth, 2014 WL 1801110 (C.D. Cal. Apr. 23, 2014).
DENIAL OF CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing § 2254 Actions provides the following:
(a) Certificate of Appealability. The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue. If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. A motion to reconsider a denial does not extend the time to appeal.
An appeal may not be taken from the denial by a district judge of a habeas petition in which the detention complained of arises out of process issued by a state court "unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)." Fed. R. App. P. 22(b). "A certificate of appealability may issue . . . only if . . . [there is] a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Here, the Court has concluded that the Petition is second or successive. Thus, the Court's determination of whether a certificate of appealability ("COA") should issue is governed by the Supreme Court's decision in Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000), where the Supreme Court held that "[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when . . . jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484. As the Supreme Court further explained: /
Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal. Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments.Id. at 485.
The Court finds that the requisite showing has not been made that "jurists of reason would find it debatable whether the district court was correct in its procedural ruling" that the Petition is second or successive and this Court has no jurisdiction over the Petition.
ORDER
Pursuant to Ninth Circuit Rule 22-3(a), the Court refers the habeas Petition to the U.S. Court of Appeals for the Ninth Circuit for consideration as an application for leave to file a second-or-successive habeas petition. The Clerk of Court shall send a copy of the habeas Petition and a copy of this Order to the Clerk of the U.S. Court of Appeals for the Ninth Circuit.
The Clerk shall provide petitioner with a form recommended by the Ninth Circuit for filing an Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255.
This action is then dismissed without prejudice for lack of subject-matter jurisdiction pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
LET JUDGMENT BE ENTERED ACCORDINGLY. / / / / / / / / /
A Certificate of Appealability is DENIED. This is a final order, but it will not be appealable unless petitioner obtains a certificate of appealability from the U.S. Court of Appeals. See Muth v. Fondren, 676 F.3d 815, 822 (9th Cir. 2012) (citing 28 U.S.C. § 2253(c)(1)(B)); see also Fed. R. App. P. 22(b)(1).
As required by Rule 58(a)(1) of the Federal Rules of Civil Procedure, final judgment will be issued separately. DATED: 3/25/19
/s/_________
HONORABLE PHILIP S. GUTIERREZ
UNITED STATES DISTRICT JUDGE Presented by: /s/_________
Paul L. Abrams
United States Magistrate Judge