Uriel Gonzalez v. Paul D Brazelton

Filing 4

ORDER by Judge Percy Anderson DISMISSING SUCCESSIVE PETITION 1 WITHOUT PREJUDICE. **See Order for details.** Case Terminated. Made JS-6. (ch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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URIEL GONZALEZ,

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Petitioner,
v.

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PAUL D. BRAZELTON, Warden,

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Respondent.

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No. CV 13-4053-PA (PLA)
ORDER DISMISSING SUCCESSIVE
PETITION WITHOUT PREJUDICE

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Petitioner initiated this action on June 6, 2013, by filing a Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (the “Petition”) in this Court. The Petition purports to challenge a

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sentence imposed in the Los Angeles County Superior Court on April 24, 2013. (Petition at 2).

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It appears that petitioner lists April 24, 2013, as his sentencing date because on that date, the Los

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Angeles County Superior Court amended his abstract of judgment, finding that his credits in case

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number PA038714 had been calculated incorrectly. (See Petition at 2 & Ex. A). PA038714 is the

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case number relating to petitioner’s 2001 attempted murder conviction, however, which he

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challenged in an earlier habeas petition in this Court -- in Case No. CV 11-8690-PA (PLA) (the

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“2011 Petition”). (See Case No. CV 11-8690-PA (PLA), Petition; Lodged Document A2). Further,

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in both the 2011 Petition and the instant Petition, petitioner lists the same offense underlying his

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conviction (i.e., attempted murder), provides the same California Court of Appeal case numbers

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appealing the challenged conviction, and states that the court of appeal denied his direct appeal

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on August 7, 2002. (Compare Case No. CV 11-8690-PA (PLA), Petition at 2-3 with Petition at 2-

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3). It therefore appears that the instant Petition challenges the same conviction and sentence as

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those challenged in his 2011 Petition. It further appears that the instant Petition does not

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challenge petitioner’s sentence as recently recalculated, as the claims raised therein attack the

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validity of his original 2001 conviction and sentence (see infra), and not the recent recalculation

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of his credits and its impact on his length of confinement. The 2011 Petition was dismissed with

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prejudice as untimely pursuant to the Judgment entered on February 12, 2013, and petitioner’s

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Motion to Alter or Amend the Judgment pursuant to Rule 59(e) of the Federal Rules of Civil

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Procedure was denied on May 21, 2013. (See Case No. CV 11-8690-PA (PLA), Docket Nos. 52,

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67).

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A habeas petition is second or successive if it raises claims that were or could have been

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adjudicated on their merits in a previous petition. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir.

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2009); see also Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam). “A

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disposition is ‘on the merits’ if the district court either considers and rejects the claims or

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determines that the underlying claim will not be considered by a federal court.” McNabb, 576 F.3d

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at 1029. Because a dismissal of a prior habeas petition for untimeliness “presents a ‘permanent

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and incurable’ bar to federal review of the underlying claims,” the Ninth Circuit has held that

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“dismissal of a section 2254 habeas petition for failure to comply with the statute of limitations

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renders subsequent petitions second or successive.” Id. at 1030.

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The Antiterrorism and Effective Death Penalty Act of 1996 (“the AEDPA”) provides that a

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claim presented in a second or successive federal habeas petition that was not presented in a

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prior petition shall be dismissed unless:

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(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
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convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.

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28 U.S.C. § 2244(b)(2)(A), (B).

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Furthermore, “[b]efore a second or successive application . . . is filed in the district court,

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the applicant shall move in the appropriate court of appeals for an order authorizing the district

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court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).

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In his 2011 federal habeas challenge, petitioner raised three claims challenging his 2001

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conviction: (1) Petitioner “was denied effective assistance of counsel when counsel failed to object

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to hearsay evidence of petitioner being the shooter”; (2) “[t]he evidence was insufficient to support

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the jury verdicts of attempted murder of Ricardo Olquin [and] David Ochoa”; and (3) there is

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insufficient evidence to support the findings that the attempted murders were willful, deliberate,

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and premeditated.1 (See Case No. CV 11-8690-PA (PLA), Report and Recommendation at 3-4).

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As mentioned above, the action was dismissed with prejudice as untimely. (See Case No. CV 11-

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8690-PA (PLA), Order Adopting Findings, Conclusions, and Recommendation of United States

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Magistrate Judge; Judgment). A certificate of appealability was denied by this Court on February

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12, 2013.

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In the instant Petition, petitioner again challenges his 2001 conviction, and asserts the

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same three grounds for relief. (See Petition Attachment at 1-73). Because petitioner’s earlier

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federal petition was denied as untimely under AEDPA’s statute of limitations, the instant Petition

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is considered to be a second or successive application. McNabb, 576 F.3d at 1030.

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In any event, even if it were found that any or all of the claims raised in the instant Petition

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satisfy 28 U.S.C. § 2244(b)(2)(A) or § 2244(b)(2)(B), petitioner is still required to seek

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authorization from the Ninth Circuit before filing a successive petition. 28 U.S.C. § 2244(b)(3)(A).

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Because petitioner has not presented any documentation showing that he has filed in the Ninth

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Circuit the requisite motion and received the requisite authorization to file a successive petition,

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The jury found that the attempted murders were committed willfully, deliberately, and with
premeditation (Cal. Penal Code § 664(a)). (See Case No. CV 11-8690-PA (PLA), Report and
Recommendation at 4 n.3).
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the Court concludes that it is without jurisdiction to entertain the Petition under 28 U.S.C. §

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2244(b). Burton v. Stewart, 549 U.S. 147, 153, 127 S.Ct. 793, 798, 166 L.Ed.2d 628 (2007)

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(AEDPA requires petitioner to receive authorization from the Court of Appeals before filing a

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second habeas petition); Cooper, 274 F.3d at 1274 (“‘When the AEDPA is in play, the district court

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may not, in the absence of proper authorization from the court of appeals, consider a second or

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successive habeas application.’”). Absent the requisite authorization from the Ninth Circuit

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allowing a successive petition, the instant Petition must be dismissed without prejudice. See

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Reyes v. Vaughn, 276 F.Supp.2d 1027, 1029-30 (C.D. Cal. 2003) (dismissing successive petition

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without prejudice to petitioner’s right to seek authorization from the Ninth Circuit).

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IT IS THEREFORE ORDERED that this action be dismissed without prejudice.

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DATED:

June 13, 2013
HONORABLE PERCY ANDERSON
UNITED STATES DISTRICT JUDGE

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