Michael Anthony Miller v. M. Bitter

Filing 4

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING ACTION WITHOUT PREJUDICE by Judge Manuel L. Real. The Current Federal Petition is denied and this action is dismissed without prejudice. See order for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL ANTHONY MILLER, 12 Petitioner, 13 14 v. M. BITER, 15 Respondent. 16 17 I. 20 21 22 23 24 27 28 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING ACTION WITHOUT PREJUDICE SUMMARY Writ of Habeas Corpus (the “Current Federal Petition”) challenging a Los Angeles County Superior Court judgment in Pasadena, California (the “State Case” or “State Conviction”) on multiple grounds. (Current Federal Petition at 2, 5-6). The Current Federal Petition reflects that petitioner has previously sought, and been denied federal habeas relief relative to the State Conviction. (Current Federal Petition at 7). Based on the record and the applicable law, the Current Federal Petition 25 26 Case No. CV 14-5752 R(JC) On July 24, 2014, petitioner Michael Anthony Miller filed a Petition for 18 19 ) ) ) ) ) ) ) ) ) ) should be denied and this action should be dismissed without prejudice for lack of /// /// 1 jurisdiction because petitioner did not obtain the requisite authorization from the 2 Court of Appeals to file a successive petition.1 3 II. PROCEDURAL HISTORY2 4 A. 5 On December 22, 2000, a Los Angeles County Superior Court jury found State Court Conviction 6 petitioner guilty of one count of corporal injury to a spouse, one count of assault by 7 means likely to produce great bodily injury and one count of false imprisonment by 8 violence in connection with the July 15, 2000 beating of petitioner’s wife. The 9 jury further found true allegations that petitioner’s current convictions included a 10 serious felony, and that petitioner had two prior serious or violent felony 11 convictions withing the meaning of California’s Three Strikes law. On July 25, 12 2001, the trial court sentenced petitioner to 25 years to life in state prison. 13 /// 14 15 16 1 In light of the pre-filing review ordered issued against petitioner by the United States 17 Court of Appeals for the Ninth Circuit (the “Ninth Circuit”) in Case No. 10-80047, and the fact 18 that the Ninth Circuit has denied petitioner leave to file a second or successive habeas corpus petition on multiple occasions (Ninth Circuit Case Nos. 09-72486, 09-72833, 10-80047), the 19 Court refrains from directing the Clerk of the Court to forward the Current Federal Petition to the 20 21 22 23 24 25 26 27 28 Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a). 2 The facts and procedural history set forth herein are derived from court records in multiple Ninth Circuit cases referenced in the text above and of which the Court takes judicial notice and from court records in the Central District of California in the following cases of which the Court takes judicial notice: (1) Michael A. Miller v. Leroy Baca, No. CV 01-1053 R(Mc) (“First Federal Action”); (2) Michael A. Miller v. CA Dept. Corrections, et al., No. CV 02-6406 R(Mc) (“Second Federal Action”); (3) Michael A. Miller v. Edward Alameda, No. CV 03-4206 R(Mc) (“Third Federal Action”); (4) Michael A. Miller v. Department of Corrections Director, et al., No. CV 04-9355 R(JC) (the “Fourth Federal Action”); (5) Michael A. Miller v. State of California, et al., No. CV 09-4837 R(JC) (“Fifth Federal Action”); and (6) Michael A. Miller v. M.D. Biter, No. CV 12-3258 R(JC) (“Sixth Federal Action”). See Fed. R. Evid. 201; United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (court may take judicial notice of its own records in other cases). 2 1 B. First Federal Action 2 On December 5, 2001, petitioner filed in the Central District of California, a 3 Petition for Writ of Habeas Corpus by a Person in State Custody in Case No. 4 01-1053 R(Mc) (“First Federal Petition”) challenging the State Conviction. On 5 January 8, 2002, judgment was entered dismissing the First Federal Petition 6 without prejudice based on petitioner’s failure to exhaust available state remedies. 7 C. Second Federal Action 8 On August 15, 2002, petitioner filed in the Central District of California, a 9 second Petition for Writ of Habeas Corpus by a Person in State Custody in Case 10 No. 02-6406 R(Mc) (“Second Federal Petition”) challenging the State Conviction. 11 On April 14, 2003, judgment was once again entered dismissing the Second 12 Federal Petition without prejudice based on petitioner’s failure to exhaust available 13 state remedies. 14 D. Third Federal Action 15 On June 13, 2003, petitioner filed in the Central District of California, a 16 third Petition for Writ of Habeas Corpus by a Person in State Custody in Case No. 17 CV 03-4206 R(Mc) (“Third Federal Petition”) challenging the State Conviction. 18 On March 25, 2004, judgment was entered dismissing the Third Federal Petition 19 without prejudice as a mixed petition. 20 E. Fourth Federal Action 21 On October 3, 2005, petitioner filed in the Central District of California, an 22 operative First Amended Petition for Writ of Habeas Corpus by a Person in State 23 Custody in Case No. CV 04-9355 R(JC) (“Fourth Federal Petition”). The 24 Fourth Federal Petition again challenged the State Conviction, asserting thirty-six 25 (36) grounds for relief. On July 25, 2007, the assigned Magistrate Judge issued a 26 Report and Recommendation recommending that the Fourth Federal Petition be 27 denied on the merits and that the Fourth Federal Action be dismissed with 28 prejudice. This Court adopted such Report and Recommendation, and judgment 3 1 was entered denying the Fourth Federal Petition and dismissing the Fourth Federal 2 Action on August 27, 2007. On September 26, 2008, the Ninth Circuit denied 3 petitioner’s request for a certificate of appealability in Case No. 07-56360.3 4 F. 5 On July 7, 2009, a Petition for Writ of Habeas Corpus submitted by Fifth Federal Action and Subsequent Ninth Circuit Actions 6 petitioner was transferred to and filed in the Central District of California in Case 7 No. 09-4837 R(JC) (“Fifth Federal Petition”).4 The Fifth Federal Petition again 8 challenged the State Conviction. On August 6, 2009, judgment was entered 9 denying the Fifth Federal Petition and dismissing the Fifth Federal Action without 10 prejudice because the Fifth Federal Petition was successive and the record did not 11 reflect that petitioner had obtained authorization from the Ninth Circuit to file it. 12 On October 19, 2009, the Ninth Circuit denied petitioner leave to file a 13 second or successive habeas corpus petition in the Central District of California in 14 Case No. 09-72833.5 15 On May 19, 2010, in Case No. 10-80047, the Ninth Circuit entered a pre- 16 filing order restricting petitioner’s future pro se filings in the Ninth Circuit and 17 directing petitioner to follow specified procedures relative to any such future 18 19 20 21 22 23 24 25 26 27 28 3 Petitioner has filed and the Court has rejected multiple post-judgment motions in the Fourth Federal Action. See, e.g., Fourth Federal Action Docket Nos. 123, 124, 126, 127, 130, 131, 132, 133, 134, 135, 136, 137, 140, 141, 144. 4 The Fifth Federal Petition was originally filed in the Ninth Circuit in Case No. 09-71657 on June 1, 2009, and transferred to the Eastern District of California pursuant to Federal Rule of Appellate Procedure 22(a) on June 24, 2009. On July 6, 2009, the Eastern District of California ordered the matter transferred to the Central District of California. 5 On September 15, 2009, the Ninth Circuit construed a Petition for Writ of Mandate filed by petitioner against the Eastern District of California, but involving a challenge to the conviction in the State Case in issue here, as an application for authorization to file a second or successive habeas petition and denied it in Case No. 09-72486. 4 1 filings.6 In the same case, the Ninth Circuit subsequently found that petitioner’s 2 application for permission to file a second or successive habeas corpus petition was 3 so insubstantial as to not warrant further review and declined to permit it to 4 proceed. 5 On April 13, 2011, the Ninth Circuit denied petitioner’s request for a 6 certificate of appealability in Case No. 09-56433. 7 G. Sixth Federal Action 8 On April 17, 2012, a Petition for Writ of Habeas Corpus submitted by 9 petitioner was transferred to and filed in the Central District of California in Case 10 No. 12-3258 R(JC) (“Sixth Federal Petition”). The Sixth Federal Petition again 11 challenged the State Conviction. On April 27, 2012, judgment was entered 12 denying the Sixth Federal Petition and dismissing the Sixth Federal Action without 13 prejudice because the Sixth Federal Petition was successive and the record did not 14 reflect that petitioner had obtained authorization from the Ninth Circuit to file it. 15 This Court also denied petitioner a certificate of appealability. Petitioner did not 16 seek further review. 17 H. Current Federal Petition 18 As noted above, on July 24, 2014, petitioner filed the Current Federal 19 Petition which again challenges the State Conviction.7 The record does not reflect 20 21 22 23 6 Also on May 19, 2010, in Case No. 10-70795, the Ninth Circuit construed petitioner’s “motion to vacate void judgment,” which was directed to the Fifth Federal Action, as a petition for writ of mandamus and denied it. 7 More specifically, petitioner appears to challenge the enhancement of his sentence with 24 prior convictions, claiming (1) such convictions were not filed in an Information as required by 25 California Penal Code section 667.7(b); (2) such convictions are constitutionally invalid because the jury in such underlying cases acquitted him of attempted voluntary manslaughter/attempted 26 murder according to California Penal Code sections 664 and 665 and because his alleged 27 kidnapping conviction under California Penal Code section 207 was not punishable under 28 California Penal Code section 208(b) and former section 208(d); and (3) the parole board found (continued...) 5 1 that petitioner has obtained authorization from the Ninth Circuit to file the Current 2 Federal Petition in District Court.8 3 III. DISCUSSION 4 Before a habeas petitioner may file a second or successive petition in a 5 district court, he must apply to the appropriate court of appeals for an order 6 authorizing the district court to consider the application. Burton v. Stewart, 549 7 U.S. 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(3)(A)). This provision 8 “creates a ‘gatekeeping’ mechanism for the consideration of second or successive 9 applications in district court.” Felker v. Turpin, 518 U.S. 651, 657 (1996); see also 10 Reyes v. Vaughn, 276 F. Supp. 2d 1027, 1028-30 (C.D. Cal. 2003) (discussing 11 applicable procedures in Ninth Circuit). A district court lacks jurisdiction to 12 consider the merits of a second or successive habeas petition in the absence of 13 proper authorization from a court of appeals. Cooper v. Calderon, 274 F.3d 1270, 14 1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen, 157 F.3d 661, 664 15 (9th Cir. 1998)), cert. denied, 538 U.S. 984 (2003). 16 The court of appeals may authorize the filing of a second or successive 17 petition only if it determines that the petition makes a prima facie showing that at 18 least one claim within the petition satisfies the requirements of 28 U.S.C. 19 Section 2244(b), i.e., that a claim which was not presented in a prior application (1) 20 21 22 23 24 25 26 27 7 (...continued) that the alleged victim was not credible and that petitioner was the victim of the alleged victim who is a female sexual predator who had petitioner falsely imprisoned twice before based on fraud. (Petition at 5-6). To the extent petitioner’s third claim is intended to challenge a parole determination rather than the judgment in the underlying State Case, dismissal without prejudice is nonetheless appropriate because such claim is not cognizable on federal habeas review. See Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011) (federal habeas court’s inquiry into whether person denied parole received due process is limited to determining whether the prisoner was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied). 8 A search of the court’s PACER system does not reflect that petitioner has been granted 28 leave to file a second or successive petition by the Ninth Circuit. 6 1 relies on a new rule of constitutional law, made retroactive to cases on collateral 2 review by the Supreme Court; or (2) the factual predicate for the claim could not 3 have been discovered previously through the exercise of due diligence and the facts 4 underlying the claim would be sufficient to establish that, but for constitutional 5 errors, no reasonable factfinder would have found the applicant 6 guilty of the underlying offense. Nevius v. McDaniel, 104 F.3d 1120, 1120-21 7 (9th Cir. 1997); Nevius v. McDaniel, 218 F.3d 940, 945 (9th Cir. 2000). 8 A second or subsequent habeas petition is not considered “successive” if the 9 initial habeas petition was dismissed for a technical or procedural reason, rather 10 than on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-487 (2000) (second 11 habeas petition not “successive” if initial habeas petition dismissed for failure to 12 exhaust state remedies); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-645 13 (1998) (second habeas petition not “successive” if claim raised in first habeas 14 petition dismissed as premature); but see McNabb v. Yates, 576 F.3d 1028, 1030 15 (9th Cir. 2009) (dismissal on statute of limitations grounds constitutes disposition 16 on the merits rendering subsequent petition “second or successive”); Henderson v. 17 Lampert, 396 F.3d 1049, 1053 (9th Cir.) (dismissal on procedural default grounds 18 constitutes disposition on the merits rendering subsequent petition “second or 19 successive”), cert. denied, 546 U.S. 884 (2005); Plaut v. Spendthrift Farm, Inc., 20 514 U.S. 211, 228 (1995) (dismissal for failure to prosecute treated as judgment on 21 the merits) (citations omitted). 22 Petitioner’s Fourth Federal Petition was dismissed on the merits. 23 Accordingly, like the Fifth and Sixth Federal Petitions, the Current Federal Petition 24 is successive. Since petitioner filed the Current Federal Petition without 25 authorization from the Ninth Circuit, this Court lacks jurisdiction to consider it. 26 /// 27 /// 28 /// 7 1 IV. ORDER 2 IT IS THEREFORE ORDERED that the Current Federal Petition is denied 3 and this action is dismissed without prejudice. 4 5 DATED: 6 7 8 JULY 31, 2014 _____________________________________ HONORABLE MANUEL L. REAL UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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