Opinion
No. CV 19-3667-PSG (PLA)
05-09-2019
ANDRE LAMAR REVIS, Petitioner, v. STUART SHERMAN, Warden, Respondent.
ORDER SUMMARILY DISMISSING HABEAS PETITION AS SUCCESSIVE
I.
BACKGROUND
Andre Lamar Revis ("petitioner") initiated this action on April 30, 2019, by filing a Petition Under 28 U.S.C. §2254 for Writ of Habeas Corpus by a Person in State Custody ("2019 Petition or Pet."). Petitioner was convicted in 2005 in the Los Angeles County Superior Court of second degree robbery and assault with a deadly weapon. He was found to have prior convictions, and was sentenced to an indeterminate term of seventy years to life in state prison. (2019 Pet. at 1). In the 2019 Petition, petitioner raises four claims: (1) the trial court abused its discretion by denying petitioner's motion to dismiss prior strike convictions; (2) petitioner received ineffective assistance of counsel during sentencing; (3) petitioner should be resentenced under Propositions 36, 47, and 57; and (4) "Petition for Recall of Sentence. Proposition(s) 36, 47 [and] 57[.] Ex-post Facto Violation of Three Strike[]s Sentence[s]." (2019 Pet. at 7, 18, 24, 32).
For ease of reference, the Court uses the ECF-generated page numbers.
Pursuant to Proposition 36, which went into effect in 2012, California Penal Code § 1170.126 was added, which "created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety." People v. Yearwood, 213 Cal.App.4th 161, 168, 151 Cal.Rptr.3d 901 (Cal. App. 5 Dist. 2013).
Proposition 47, which took effect in California in November 2014, "reduced the penalties for certain drug and theft-related offenses and reclassified those offenses as misdemeanors rather than felonies. [Citations.] It also added section 1170.18 to the Penal Code, which allows those previously convicted of felonies that were reclassified as misdemeanors under Proposition 47, to petition the court to have their felony convictions designated as misdemeanors." People v. Zamarripa, 247 Cal.App.4th 1179, 1182, 202 Cal. Rptr. 3d 525 (Cal. App. 2 Dist. 2016).
Proposition 57, which was approved by California voters in November 2016, amended the California Constitution to add Section 32 to Article I, making nonviolent adult offenders "eligible for parole consideration after completing the full term for [their] primary offense[s]." Cal. Const. art. I, § 32(a)(1). California cases addressing the application of Proposition 57 have "uniformly state[d] that Proposition 57 creates a mechanism for parole consideration, not a vehicle for resentencing." Daniels v. California Dep't of Corr. and Rehab., 2018 WL 489155, at *4 (E.D. Cal. Jan. 19, 2018).
A petitioner may seek federal habeas relief from a state court conviction or sentence if he is contending that he is in custody in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Matters relating solely to the interpretation and/or application of state law generally are not cognizable on federal habeas review. See, e.g., Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010) ("violations of state law are not cognizable on federal habeas review"). Accordingly, even if not successive, petitioner's sentencing claims premised on Propositions 36, 47, and 57 are not cognizable in a federal habeas proceeding as such claims only involve state law issues.
Petitioner has filed numerous federal habeas petitions. On May 13, 2014, petitioner filed a habeas petition in Case No. CV 14-3665-PSG (RNB) challenging his 2005 conviction. On June 13, 2014, he filed a First Amended Petition (the "2014 Amended Petition"). The 2014 Amended Petition was dismissed with prejudice as time barred pursuant to the Judgment entered on July 18, 2014. (See CV 14-3665, ECF Nos. 5, 7, 9, 10). Both this Court and the Ninth Circuit denied petitioner's request for a certificate of appealability. (See id., ECF Nos. 11, 16).
Petitioner also filed a federal habeas petition in 2008 in Case No. CV 08-827-PSG (RNB) that was dismissed without prejudice for failure to exhaust state remedies. (See CV 08-827, ECF Nos. 4-6).
The docket for Ninth Circuit Case No. 16-73155 reflects that on May 26, 2017, the Ninth Circuit denied plaintiff's application to file a second or successive habeas petition because his habeas petition raised the same three claims that had been raised in Case No. CV 14-3665, which had been dismissed as untimely, and the petition he sought to bring was therefore a successive petition. (See Ninth Circuit docket for Case No. 16-73155).
Afterthe 2014 Petition was dismissed as untimely, petitioner filed three subsequent habeas petitions that were each dismissed by the Court as successive: a petition in Case No. CV 16-6215-PSG (PLA) was filed on August 18, 2016 (the "2016 Petition"), and dismissed on September 28, 2016 (see CV 16-6215, ECF No. 14); a petition in Case No. CV 17-6642-PSG (PLA) was filed on September 8, 2017 (the "2017 Petition"), and dismissed on September 14, 2017 (see CV 17-6642, ECF No. 4); and a petition in Case No. CV 18-372-PSG (PLA) was filed on January 16, 2018 (the "2018 Petition"), and dismissed on January 24, 2018 (see CV 18-372, ECF No. 6). Petitioner did not appeal any of the dismissals of his successive petitions.
The docket for Ninth Circuit Case No. 17-72487 reflects that on September 5, 2017, petitioner filed an application for leave to file a second or successive petition, and that on April 12, 2018, the Ninth Circuit denied the application without prejudice. (See Ninth Circuit docket for Case No. 17-72487).
II.
DISCUSSION
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 AEDPA provides that a claim presented in a second or successive federal habeas petition that was 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). 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).
(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.
Petitioner's 2014 Amended Petition raised the following grounds for relief: (1) the trial court improperly imposed a high term sentence; (2) petitioner was denied the effective assistance of counsel during sentencing; (3) "Memorandum of Authorities in support of [petitioner's habeas motion regarding] Three Strikes reform act: Proposition 36"; (4) "Motion to bar use of prior felony(ies) [sic] both as a 'strike' and as a serious felony"; and (5) a motion for an evidentiary hearing and appointment of counsel. (See CV 14-3665, ECF No. 5 at 8-26). As mentioned above, the 2014 Amended Petition was dismissed with prejudice as time barred. Petitioner's 2016 Petition, 2017 Petition, and 2018 Petition -- all of which raised claims attacking, or seeking the recall of, his sentence for his 2005 conviction -- were dismissed as successive. Now, in the pending 2019 Petition, petitioner again raises grounds for relief that challenge his sentence with respect to his 2005 conviction.
A habeas petition that has been dismissed with prejudice for failure to comply with the statute of limitations "renders subsequent petitions second or successive for purposes of the AEDPA." McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009); see also Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005) (dismissal of an earlier petition with prejudice because of a procedural default constitutes a disposition on the merits and renders a subsequent petition second or successive for purposes of 28 U.S.C. § 2244(b)). Accordingly, given the dismissal of the 2014 Amended Petition as time barred, the 2019 Petition is also successive.
It appears that in addition to being successive, the 2019 Petition would be barred by the statute of limitations as well. See 28 U.S.C. § 2244(d)(1) (one-year limitations period for filing federal habeas petition).
Petitioner does not contend that his claims in the 2019 Petition satisfy 28 U.S.C. § 2244(b)(2)(A) or (B). Specifically, he does not contend that the instant claims rely on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. Moreover, it appears to the Court that the factual predicate of the claims raised in the 2019 Petition could have previously been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(b)(2)(A), (B). Even if petitioner could satisfy any of the exceptions listed in 28 U.S.C. § 2244(b)(2)(A) or (B), he is still required -- as he was clearly advised in the Court's Orders dismissing his 2016 Petition, 2017 Petition, and 2018 Petition -- to request and obtain 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, 798, 166 L.Ed.2d 628 (2007) (AEDPA requires petitioner to receive authorization from the court of appeals before filing a second habeas petition). Because there is no indication that petitioner has obtained such authorization from the Ninth Circuit, the Court is without jurisdiction to entertain the 2019 Petition. 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.'").
Accordingly, dismissal of the 2019 Petition without prejudice as successive is appropriate.
Petitioner is again advised that if he wishes to make a successive habeas application, he must file a "Motion for Order Authorizing District Court to Consider Second or Successive Petition Pursuant to 28 U.S.C. § 2244(b)(3)(A)" directly with the Ninth Circuit Court of Appeals. Until the Ninth Circuit issues such an order, any direct or implied request for a second or successive petition for writ of habeas corpus is barred by § 2244(b) and must be dismissed without prejudice to petitioner's right to seek authorization from the Ninth Circuit to file the petition.
If petitioner obtains permission from the Ninth Circuit Court of Appeals to file a successive petition, he should file a new petition for writ of habeas corpus. He should not file an amended petition in this action or use the case number from this action because the instant action is being closed today. If petitioner files a new petition, the Court will give that petition a new case number.
III.
CONCLUSION
IT IS THEREFORE ORDERED that the 2019 Petition is dismissed without prejudice as successive. DATED: 5/9/19
/s/_________
HONORABLE PHILIP S. GUTIERREZ
UNITED STATES DISTRICT JUDGE