Kevin Deon Morgan v. E. Valenzuela

Filing 3

MINUTE ORDER IN CHAMBERS by Magistrate Judge Sheri Pym:, Order to Show Cause Why Petition Should Not Be Dismissed. The court hereby issues this Order to Show Cause why the Petition should not be dismissed, and specifically orders petitioner to respond to the Order to Show Cause in writing by no later than October 28, 2014 (SEE ORDER FOR DETAILS). (Attachments: # 1 Notice of Dismissal) (kca)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-7246-VAP (SP)

Title

Kevin Deon Morgan v. E. Valenzuela, Warden

Present: The
Honorable

Date

October 7, 2014

Sheri Pym, United States Magistrate Judge

Kimberly I. Carter

n/a

n/a

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

n/a

n/a

Proceedings:

(In Chambers) Order to Show Cause Why Petition Should Not Be
Dismissed

On September 17, 2014, petitioner Kevin Deon Morgan filed a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254 (the "Petition"). Petitioner challenges his
convictions and the sentence he received in Los Angeles Superior Court. In particular, on
November 30, 2004, petitioner was convicted of assault with a deadly weapon (Cal. Penal
Code § 245(a)(1)), making a criminal threat (Cal. Penal Code § 422), carjacking (Cal.
Penal Code § 251(a)), evading an officer (Cal. Vehicle Code § 2800.2(a)), and leaving
the scene of an accident (Cal. Vehicle Code § 20001(a)). Pet. at 2. On March 4, 2005,
petitioner was sentenced to 93 years to life in prison. Id.
This court having reviewed the Petition, it appears that the Petition is subject to
dismissal as a second or successive petition without the requisite Court of Appeals
authorization. The court will not make a final determination regarding whether this
federal Petition should be dismissed, however, without giving petitioner an opportunity to
address this issue.
Accordingly, the court hereby issues this Order to Show Cause why the Petition
should not be dismissed, and specifically orders petitioner to respond to the Order to
Show Cause in writing by no later than October 28, 2014. The court further directs
petitioner to review the information that follows, which provides additional explanation
as to why the federal Petition appears to be subject to dismissal and may assist petitioner
in determining how to respond.
On July 22, 2008, in case number CV 08-4784-RSWL-OP, petitioner filed a
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-7246-VAP (SP)

Date

Title

October 7, 2014

Kevin Deon Morgan v. E. Valenzuela, Warden

previous habeas petition in this court. That earlier petition raised different claims than
those petitioner raises in the instant Petition, but it challenged the same convictions and
sentence that petitioner challenges in the instant Petition. This court denied with
prejudice petitioner’s prior habeas petitioner challenging the same judgment challenged
in this case, finding petitioner’s claims did not merit habeas relief.
Under § 2244(b)(2), any claim raised in a successive petition but not presented in a
prior petition must 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.
28 U.S.C. § 2244(b)(2). If the petitioner meets either of the above exceptions, he must
obtain an order by a panel of the appropriate Court of Appeals, authorizing the district
court to consider the petition. 28 U.S.C. § 2244(b)(3)(A); see also Magwood v.
Patterson, 561 U.S. 320, 331, 130 S. Ct. 2788, 177 L. Ed. 2d 592 (2010).
In his Petition, petitioner makes no showing that the claim he raises meets either of
the exceptions in § 2244(b)(2). His first claim is based on Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), which was decided well before he
filed his first federal habeas petition. His second claim asserts that his sentence under the
three strikes law violated his rights under the Ex Post Facto Clause and to due process.
He cites no new rule of constitutional law, and nothing indicates that the factual
predicates of these claims were unknown at the time of his sentencing in 2005.
Moreover, even if petitioner’s claims fall under one of the § 2244(b)(2) exceptions,
the instant Petition would still be impermissibly successive because there is no indication
that petitioner obtained permission from the United States Court of Appeals for the Ninth
Circuit to file a successive petition, as required by § 2244(b)(3)(A). Accordingly, at a
minimum, the Petition appears barred by § 2244(b)(3).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-7246-VAP (SP)

Date

Title

October 7, 2014

Kevin Deon Morgan v. E. Valenzuela, Warden

If petitioner contends that his claims meet one of the exceptions in 28 U.S.C.
§ 2244(b)(2), and that he has obtained permission from the Ninth Circuit to file a
successive petition as required by § 2244(b)(3)(A), he should clearly explain all of this in
a written response to this Order to Show Cause. The written response must be filed on or
before October 28, 2014. Petitioner should attach to his response copies of any
documents supporting his contentions.
Alternatively, petitioner may request a voluntary dismissal of this action without
prejudice pursuant to Federal Rule of Civil Procedure 41(a). A Notice of Dismissal
form is attached for petitioner’s convenience. The court advises petitioner, however,
that if petitioner should later attempt to again raise any dismissed claims in subsequent
habeas petition, those claims may be time-barred under the statute of limitations in 28
U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State court.”),
if they are not already. Such dismissal request must also be filed on or before October
28, 2014.
The court warns petitioner that failure to timely file and serve a response as
directed in this order will result in a recommendation that this action be dismissed
without prejudice as impermissibly successive, for failure to prosecute, and/or for
failure to obey court orders.

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