Opinion
Case No. CV 16-05025-TJH (KES)
07-21-2016
SHADALE LEWIS WILLIAMS, Petitioner, v. C. PFEIFFER, Warden, Respondent.
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION
On July 8, 2016, Shadale Lewis Williams (hereinafter referred to as "Petitioner") filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" pursuant to 28 U.S.C. § 2254. (Dkt. 1.) The Petition is the fourth habeas corpus petition Petitioner has filed in this Court stemming from his 1997 state court conviction and sentence in Los Angeles County Superior Court ("LACSC") Case No. BA133003. (Id. at 1-2.)
On July 17, 1997, after a court trial, Petitioner was convicted of assault with intent to commit rape and thereafter was sentenced to a term of 30 years to life in state prison.
All page citations are to the electronic CM/ECF docket.
Concurrently, Petitioner filed documents entitled "Petition For Federal Review" and "Notice: Status Of Case On Verified Prison Release." (Dkt. 2-3.)
Petitioner requests the District Court to file his "Petition For Federal Review" (Dkt. 2) with the Clerk's office for the United States Court of Appeals for the Ninth Circuit. Petitioner also mentioned in his Notice that he submitted an "Application to File Second/Successive Petition-Request-unto (sic) the U.S. 9th Circuit Court of Appeals" along with his Petition for Federal Review. (Dkt. 2 at 2.) Petitioner is advised that this Court did not receive an "Application to File a Second or Successive Petition" and that if Petitioner seeks to file a second or successive petition he must file the Application in the Ninth Circuit, not the District Court.
Under the Rules Governing Section 2254 Cases in the United States District Courts, a habeas petition filed by a prisoner in state custody "must" be summarily dismissed "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court ....." Rule 4, 28 U.S.C. foll. §2254. For the reasons set forth below, the Petition must be dismissed as a second or successive petition pursuant to 28 U.S.C. § 2244(b).
BACKGROUND
On January 11, 1999, Petitioner filed a habeas petition pursuant to 28 U.S.C. § 2254 in this Court based on his 1997 conviction in LACSC Case No. BA133003, which was given Case No. CV99-207-MMM (Mc) [hereinafter the "First Action"]. On February 24, 1999, Petitioner filed an amended petition in the First Action, which raised two claims for relief, alleging that: the evidence was insufficient to support Petitioner's conviction; and the trial court violated Petitioner's right to compulsory process by relying on the victim's hearsay statement and failing to grant a continuance so that Petitioner could locate the victim and obtain her testimony. The First Action was resolved on the merits and habeas relief was denied by Judgment entered on July 20, 2000. Petitioner did not timely appeal.
The Court takes judicial notice of its own files and records. Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988). --------
On April 6, 2005, over four years later, Petitioner again filed a Section 2254 habeas petition in this Court based on his conviction in LACSC Case No. BA133003, in Case No. CV05-2544-AHS (OP) (the "Second Action"). In the Second Action, Petitioner raised three grounds for relief stemming from the prosecutor's alleged wrongful withholding of impeachment evidence. On February 5, 2007, Judgment was entered dismissing the Second Action, on the grounds that the Petition violated the second or successive petition prohibition set forth in 28 U.S.C. § 2244(b). Petitioner appealed. On September 4, 2007, the Ninth Circuit denied Petitioner's request for a certificate of appealability (Case No. 07-55452).
While the Second Action was pending, on September 7, 2005, Petitioner filed an application in the Ninth Circuit, seeking leave to pursue a second or successive Section 2254 petition in this Court (Case No. 05-75206). On February 1, 2006, the Ninth Circuit denied the application.
On September 20, 2007, Petitioner filed another Section 2254 habeas petition in this Court based on his 1997 conviction, in Case No. CV 07-6098-TJH (MAN) (the "Third Action"). In the Third Action, Petitioner raised four claims arising out of a restitution order entered by the state court in July 1997, in LACSC Case No. BA133033. On October 4, 2007, Judgment was entered dismissing the Third Action without prejudice, on the grounds that the Petition violated the second or successive petition prohibition set forth in 28 U.S.C. § 2244(b). Petitioner appealed. On June 24, 2008, the Ninth Circuit denied Petitioner's request for a certificate of appealability (Case No. 07-56735).
The instant Petition raises three claims for relief alleging that there were cumulative errors at Petitioner's trial (denial of Penal Code §§ 1054.1(e) and 1054.2(a) disclosures), that the government failed to correct a defective indictment and that Petitioner received ineffective assistance from his private investigator. (Dkt. 1 at 5-15.)
The Petition now pending is governed by 28 U.S.C. § 2244(b), which provides in pertinent part as follows:
(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application 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; or
(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.
(Emphasis added.)
(3) (A) Before 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.
The Petition now pending constitutes a second and/or successive petition challenging the same conviction as Petitioner's prior habeas petitions, within the meaning of 28 U.S.C. § 2244(b). Thus, it was incumbent on Petitioner under § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing the District Court to consider his new claims prior to his filing of the instant Petition in the District Court. Petitioner's failure to secure an order from the Ninth Circuit authorizing the District Court to consider any new claims being alleged in the Petition now pending, prior to his filing of the Petition in the District Court, deprives the Court of subject matter jurisdiction. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001), cert. denied, 538 U.S. 984 (2003).
IT THEREFORE IS ORDERED that this action be summarily dismissed without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: July 21, 2016
/s/_________
TERRY J. HATTER, JR.
UNITED STATES DISTRICT JUDGE Presented by: /s/_________
KAREN E. SCOTT
United States Magistrate Judge