Hugo David Gomez v. Greg Lewis

Filing 4

ORDER TO SHOW CAUSE RE: DISMISSAL OF SUCCESSIVE PETITION by Magistrate Judge Paul L. Abrams. Accordingly, petitioner is ordered to show cause why the instant Petition should not be dismissed as successive. Specifically, no later than October 31, 201 3, petitioner must submit to the Court documentation showing that, pursuant to 28 U.S.C. § 2244(b)(3)(A), he properly filed a motion in the Ninth Circuit for an order authorizing the district court to consider a successive petition, and that the Ninth Circuit issued such an order. (See attached Order.) (es)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11
12

HUGO DAVID GOMEZ,

13
14
15
16

Petitioner,
v.
GREG LEWIS, Warden,
Respondent.

17

)
)
)
)
)
)
)
)
)
)

No. CV 13-7398-R (PLA)
ORDER TO SHOW CAUSE RE: DISMISSAL
OF SUCCESSIVE PETITION

18

On October 7, 2013, petitioner filed a Petition for Writ of Habeas Corpus by a Person in

19

State Custody under 28 U.S.C. § 2254 (the “Petition”) in the United States District Court for the

20

Central District of California. In the Petition, petitioner challenges his 1997 conviction in the Los

21

Angeles County Superior Court. The Court observes that on December 28, 2000, petitioner filed

22

an earlier habeas petition in this Court, in Case No. CV 00-13507-R (FMO), in which he also

23

challenged his 1997 conviction. The 2000 petition was dismissed with prejudice in a June 3, 2002,

24

Order adopting the findings and conclusions of the Magistrate Judge. (See Order Adopting

25

Findings, Conclusions and Recommendations of United States Magistrate Judge in Case No. CV

26

00-13507-R (FMO) (“2002 Order”)).

27

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

28

adjudicated on the merits in a previous petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th

1

Cir. 2001) (per curiam), cert. denied, 538 U.S. 984, 123 S.Ct. 1793 (2003). The Antiterrorism and

2

Effective Death Penalty Act of 1996 (“AEDPA”) provides that a claim presented in a second or

3

successive federal habeas petition that was not presented in a prior petition shall be dismissed

4

unless:

5
6
7
8
9
10
11
12

(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.
28 U.S.C. § 2244(b)(2)(A), (B).

13

Furthermore, “[b]efore a second or successive application permitted by this section is filed

14

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

15

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

16

In his 2000 federal habeas challenge, petitioner raised the claim that the trial court erred

17

in failing to instruct the jury, sua sponte, on voluntary manslaughter on the theories of

18

unreasonable self-defense and heat of passion. (See Report and Recommendation of United

19

States Magistrate Judge in Case No. CV 00-13507-R (FMO) at 9). The action was considered on

20

the merits and dismissed with prejudice. (See id. at 11-16; 2002 Order).

21

In the instant Petition, petitioner challenges the same conviction that he challenged in his

22

2000 Petition, setting forth the following grounds for relief: (1) “trial counsel’s alleged

23

incompetence before trial, during trial;” (2) “trial counsel’s failure to investigate and present the

24

potentially meritorious mental illness;” (3) “trial counsel’s failure to investigate intoxication defense

25

not ‘tactical choice;’” (4) “the ineffectiveness of counsel as prejudicial to petitioner;” (5) “trial

26

counsel’s incompetence during counsel’s obligation regarding [jury] instructions.” (Petition at

27

pages “5 of 11” and “6 of 11”). Even if petitioner’s claims in the instant Petition satisfied the

28

AEDPA standards for filing a successive petition (although it does not appear that they satisfy 28
2

1

U.S.C. § 2244(b)(2)(A) or (B)), he nevertheless is required to first seek authorization from the

2

Ninth Circuit before filing a successive petition. 28 U.S.C. § 2244(b)(3)(A). Here, there is no

3

indication that petitioner has obtained such permission from the Ninth Circuit. See Burton v.

4

Stewart, 549 U.S. 147, 153, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (AEDPA requires petitioner

5

to receive authorization from the Court of Appeals before filing a second habeas petition). It

6

therefore appears that the Court is without jurisdiction to entertain the current Petition under 28

7

U.S.C. § 2244(b). See id.; Cooper, 274 F.3d at 1274 (“‘When the AEDPA is in play, the district

8

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

9

or successive habeas application.’”) (citation omitted).

10

Accordingly, petitioner is ordered to show cause why the instant Petition should not be

11

dismissed as successive. Specifically, no later than October 31, 2013, petitioner must submit

12

to the Court documentation showing that, pursuant to 28 U.S.C. § 2244(b)(3)(A), he properly filed

13

a motion in the Ninth Circuit for an order authorizing the district court to consider a successive

14

petition, and that the Ninth Circuit issued such an order. Failure to respond by October 31,

15

2013, will result in the instant Petition being summarily dismissed without prejudice.1 See

16

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

17

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

18

IT IS SO ORDERED.

19
20

DATED: October 10, 2013
PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28

1

In the event that petitioner has not complied with 28 U.S.C. § 2244(b)(3)(A), and he
does not provide documentation showing that he is not required to first receive Ninth Circuit
authorization before filing a successive petition, he is 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. 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.
3