Hector Lopez v. G. D. Lewis

Filing 4

ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION; DENYING A CERTIFICATE OF APPEALABILITY by Judge Percy Anderson: This action is dismissed without prejudice for lack of subject-matter jurisdiction pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Case Terminated. Made JS-6. (jm)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HECTOR LOPEZ,

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v.

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G.D. LEWIS, Warden,

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Petitioner,
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Respondent. )
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No. CV 14-7445 PA (FFM)
ORDER SUMMARILY DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS FOR LACK OF SUBJECT
MATTER JURISDICTION;
DENYING A CERTIFICATE OF
APPEALABILITY

DISMISSAL OF HABEAS PETITION WITHOUT PREJUDICE

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On or about August 14, 2014, petitioner Hector Lopez (“Petitioner”)

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constructively filed a Petition for Writ of Habeas Corpus by a Person in State

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Custody (“Petition”).1 Petitioner challenges a conviction and sentence imposed by

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the Los Angeles County Superior Court in Case No. BA242150 in 2003.

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The Court takes judicial notice of its files with respect to a prior habeas

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petition (the “Prior Petition”) Petitioner constructively filed in this Court on or

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about January 6, 2006, Case No. CV 06-99 PA (FFM). The Court notes that the

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A pro se prisoner’s relevant filings may be construed as filed on the date they
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Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379 (1988). In this case, Petitioner has
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attached a proof of service to the Petition stating that the Petition was served on
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Prior Petition was directed to the same conviction and/or sentence sustained in

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Los Angeles County Superior Court Case No. BA242150. On July 16, 2008,

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Judgment was entered in Case No. CV 06-99 PA (FFM) denying the Prior Petition

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on the merits and dismissing the action with prejudice.

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The Petition now pending is governed by the provisions of the Antiterrorism

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and Effective Death Penalty Act of 1996 (Pub. L. 104-132, 110 Stat. 1214) (“the

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Act”) which became effective April 24, 1996. Section 106 of the Act amended 28

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U.S.C. § 2244(b) to read, in pertinent part, as follows:

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“(1) A claim presented in a second or successive habeas corpus

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application under section 2254 that was presented in a prior application

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shall be dismissed.

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(2) A claim presented in a second or successive habeas corpus

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application under section 2254 that was not presented in a prior

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application shall be dismissed unless --

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(A) the applicant shows that the claim relies on a new rule of

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constitutional law, made retroactive to cases on collateral review by

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the Supreme Court, that was previously unavailable; or

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(B)(i) the factual predicate for the claim could not have been

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discovered previously through the exercise of due diligence; and

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(ii) the facts underlying the claim, if proven and viewed in light of

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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

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factfinder would have found the applicant guilty of the underlying

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offense.

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(3)(A) Before a second or successive application permitted by this

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section is filed in the district court, the applicant shall move in the

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appropriate court of appeals for an order authorizing the district court

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to consider the application.”
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Therefore, because the Petition now pending challenges the same conviction

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as Petitioner’s Prior Petition, it constitutes a second and/or successive petition

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within the meaning of 28 U.S.C. § 2244(b). To the extent Petitioner seeks to

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pursue the same claims he previously asserted, the Petition is barred by the

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provisions of 28 U.S.C. § 2244(b)(1). To the extent Petitioner seeks to pursue

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claims not previously asserted, as appears to be the case, it was incumbent on him

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under § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing the

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District Court to consider the Petition, prior to his filing of it in this Court.

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Petitioner’s failure to secure such an order from the Ninth Circuit deprives the

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Court of subject matter jurisdiction.

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“REFERRAL” OF HABEAS CORPUS PETITION TO NINTH CIRCUIT

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Ninth Circuit Rule 22-3(a) states, in pertinent part, that “[i]f a second or

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successive petition or motion, or an application for authorization to file such a

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petition or motion, is mistakenly submitted to the district court, the district court

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shall refer it to the court of appeals.”

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Therefore, to the extent the Petition was “mistakenly submitted” to this

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Court, the Petition must be referred to the court of appeals. However, on its face

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the Petition states that it is directed to this Court and nothing in the Petition sets

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forth any basis for concluding that it was filed with the intention of obtaining any

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order permitting the filing of a second or successive petition. Thus, the Court

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cannot conclude that the Petition was mistakenly submitted to this Court.

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Moreover, any such transfer to the court of appeals would appear to be a useless

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act in that the one year limitations period provided in the Act expired in 2006.

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Therefore, the Court declines to transfer the Petition to the Ninth Circuit Court of

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Appeals.

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DENIAL OF CERTIFICATE OF APPEALABILITY

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Rule 11(a) of the Rules Governing § 2254 Actions provides:

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(a) Certificate of Appealability. The district court must issue or deny

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a certificate of appealability when it enters a final order adverse to the

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applicant. Before entering the final order, the court may direct the

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parties to submit arguments on whether a certificate should issue. If

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the court issues a certificate, the court must state the specific issue or

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issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If

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the court denies a certificate, the parties may not appeal the denial but

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may seek a certificate from the court of appeals under Federal Rule of

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Appellate Procedure 22. A motion to reconsider a denial does not

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extend the time to appeal.

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Here, given the Court’s ruling on settled legal issues, the Court does not

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require any arguments from the parties on whether a certificate of appealability

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(“COA”) should issue.

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Under 28 U.S.C. § 2253(c)(2), a COA may issue “only if the applicant has

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made a substantial showing of the denial of a constitutional right.” Here, the

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Court dismissed the petition on the ground that it was a second or successive

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petition. Thus, the Court’s determination of whether a COA should issue is

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governed by the Supreme Court’s decision in Slack v. McDaniel, 529 U.S. 473,

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120 S.Ct. 1595, 146 L. Ed. 2d 542 (2000), where the Supreme Court held that,

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“[w]hen the district court denies a habeas petition on procedural grounds without

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reaching the prisoner’s underlying constitutional claim, a COA should issue when

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the prisoner shows, at least, that jurists of reason would find it debatable whether

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the petition states a valid claim of the denial of a constitutional right and that

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jurists of reason would find it debatable whether the district court was correct in

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its procedural ruling.” 529 U.S. at 484. As the Supreme Court further explained:

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Section 2253 mandates that both showings be made before the court of

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appeals may entertain the appeal. Each component of the § 2253(c)

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showing is part of a threshold inquiry, and a court may find that it can

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dispose of the application in a fair and prompt manner if it proceeds

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first to resolve the issue whose answer is more apparent from the

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record and arguments.

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529 U.S. at 485.

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Here, the Court finds that its ruling is not one in which “jurists of reason

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would find it debatable whether the district court was correct in its procedural

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ruling” that the Court has no jurisdiction over the Petition.

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ORDER
This action is dismissed without prejudice for lack of subject-matter

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jurisdiction pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the

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United States District Courts.

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LET JUDGMENT BE ENTERED ACCORDINGLY.
A certificate of appealability is denied.

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DATED: October 8, 2014

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_____________________
PERCY ANDERSON
United States District Judge

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Presented by:

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/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge

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