Johnny Choinski v. Internal Affair Group et al

Filing 9

ORDER DISMISSING SUCCESSIVE PETITION 1 WITHOUT PREJUDICE by Judge Margaret M. Morrow. **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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JOHNNY CHOINSKI,

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Petitioner,
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v.
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LOS ANGELES POLICE DEPARTMENT )
INTERNAL AFFAIR GROUP, et al.,
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Respondents.
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No. CV 14-5077-MMM (PLA)

ORDER DISMISSING SUCCESSIVE
PETITION WITHOUT PREJUDICE

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Johnny Choinski (“petitioner”) initiated this action on July 7, 2014, by filing an “Affidavit of

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Notice, Declaration, and Demand ...,” which the Court construes as a Petition for Writ of Habeas

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Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. In the instant Petition, petitioner challenges his

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2002 conviction in the Los Angeles County Superior Court and seeks, among other things,

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issuance of an “order for release” from “ill[e]gal incarceration.” (Petition at 211). On March 20,

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2006, petitioner filed an earlier habeas petition in this Court, Case No. CV 06-1672-MMM (PLA),

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in which petitioner challenged the same 2002 conviction. The 2006 petition was dismissed on the

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merits with prejudice pursuant to the Judgment entered on February 24, 2009. (See Judgment

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in Case No. CV 06-1672-MMM (PLA)).

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For ease of reference, the Court has numbered the pages of the Petition consecutively,
i.e., 1-22.

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

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

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Cir. 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.

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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
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).

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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 2006 federal habeas challenge, petitioner raised the following claims: (1) the

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prosecution committed misconduct by withholding, hiding, or covering up evidence; (2)

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petitioner’s trial counsel rendered ineffective assistance for failing to investigate and present a

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defense to all of the charges; (3) the prosecutor committed misconduct by failing to disclose

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evidence regarding the injuries to petitioner’s spouse; (4) the prosecution failed to disclose

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exculpatory evidence; (5) petitioner’s trial counsel rendered ineffective assistance; and (6)

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petitioner’s trial resulted in a fundamental miscarriage of justice as the prejudicial effect of all

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errors violated due process. (See Final Report and Recommendation, issued on March 24, 2008,
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at p. 6). As mentioned above, the action was dismissed on the merits and with prejudice. (See

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Order Adopting Magistrate Judge’s Final Report and Recommendation and Judgment, both

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entered on February 24, 2009). Petitioner’s subsequent request for a certificate of appealability

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was denied.2

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As set forth above, a habeas petition is successive if it raises claims that could have been

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adjudicated on their merits in the prior petition. McNabb, 576 F.3d at 1029. Here, even if

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petitioner has raised different claims in the instant Petition than in his 2006 petition, these claims

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-- many of which relate to the underlying criminal charges against petitioner and events that took

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place at trial -- could have been raised in his 2006 petition. Accordingly, given that the 2006

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petition was adjudicated on the merits and dismissed with prejudice, the instant Petition is

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successive.

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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 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

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

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

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

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

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

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Petitioner subsequently filed another petition challenging the same conviction and
sentence, on December 7, 2009, which was dismissed as successive on March 19, 2010. (See
Case No. CV 09-8967-MMM (PLA)).
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IT IS THEREFORE ORDERED that this action be dismissed without prejudice.

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DATED: July 22, 2014
HONORABLE MARGARET M. MORROW
UNITED STATES DISTRICT JUDGE

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