Ronald Edward McNabb v. Warden

Filing 8

OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS by Judge S. James Otero. On January 25, 2016, Petitioner filed a First Amended Petition for Writ of Habeas Corpus by a Person in State Custody ("FAP") pursuant to 28 U.S.C. § 225 4. Petitioner challenges his conviction in Los Angeles County Superior Court in 1982. (FAP at 2.) Here, the Petition is a second or successive petition challenging the same 1982 conviction and sentence imposed by the same judgment of the state cour t as in Petitioner's seven prior habeas actions in this court. The Ninth Circuit has denied Petitioner's applications to file a successive petition three times. IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. (See Order for details.) (mp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RONALD EDWARD MCNABB,

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Petitioner,

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v.

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WARDEN, C.S.P. SACRAMENTO,

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Respondent.

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NO. CV 15-9269-SJO (AGR)

OPINION AND ORDER ON
PETITION FOR WRIT OF
HABEAS CORPUS

On January 25, 2016, Petitioner filed a First Amended Petition for Writ of

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Habeas Corpus by a Person in State Custody (“FAP”) pursuant to 28 U.S.C. §

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2254. Petitioner challenges his conviction in Los Angeles County Superior Court

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in 1982. (FAP at 2.)

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I.

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PROCEDURAL BACKGROUND

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Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the records
in Petitioner’s prior federal habeas corpus actions in the Central District.

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The FAP indicates that, after a bench trial in 1982, Petitioner was convicted

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of second degree murder and sentenced to prison for 15 years to life. (FAP at 2.)

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On July 13, 2004, petitioner filed a Petition for Writ of Habeas Corpus in

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this court in case number CV 04-5850-FMC (SH). Petitioner challenged the

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same 1982 conviction. On March 25, 2005, the district court denied that habeas

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petition with prejudice as untimely. (Dkt. Nos. 42-43, 46.) On June 22, 2006, the

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Ninth Circuit denied a certificate of appealability. (Dkt. No. 50.) On February 28,

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2007, the Ninth Circuit denied Petitioner’s application for authorization to file a

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second or successive petition. (Dkt. No. 55.)

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Meanwhile, on December 28, 2005, petitioner filed a second habeas

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petition in case number CV 05-08973-FMC (SH). Petitioner challenged the same

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1982 conviction. On January 17, 2006, the district court dismissed that habeas

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petition as an unauthorized, successive petition. (Dkt. No. 5.)

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Between that 2006 dismissal and the filing of the current action, Petitioner

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filed five more habeas actions in this court challenging the 1982 conviction, all of

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which this court dismissed for lack of jurisdiction as successive. (See Dockets in

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case nos. CV 08-4291-FMC (SH)), 09-0826-FMC (SH), 09-9457-MMM (SH), 11-

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7095-MMM (SH) and 12-2394-MMM (SH).) On May 19, 2010, the Ninth Circuit

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denied an application to file a second or successive petition. (Dkt. No. 5, Case

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No. 09-826 FMC (SH).) On November 14, 2011, the Ninth Circuit again denied

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Petitioner’s application to file a second or successive petition. (Dkt. No. 4, Case

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No. 09-9457 MMM (SH).)

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On December 3, 2014, the Parole Board found Petitioner unsuitable for

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parole. On December 1, 2015, Petitioner filed in this court his initial petition,

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which contained four claims. Grounds One, Two and Three again challenged his

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1982 conviction. In Ground Four, Petitioner challenged his December 3, 2014

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parole denial, complaining that he presented no danger to the public. On

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December 8, 2015, the court ordered Petitioner to show cause why the court

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should not recommend dismissal of Ground Four on the grounds that it was

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unexhausted and barred by Swarthout v. Cooke, 562 U.S. 216 (2011). On
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December 21, 2015, Petitioner filed a response to the show-cause order that did

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not address the substance of the order to show cause. Petitioner requested that

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the court release him “with time served[.]” (Dkt. No. 4.)

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On January 25, 2016, Petitioner filed the FAP. The FAP challenges the

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1982 conviction and contains two grounds: (1) insanity; and (2) ineffective

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assistance of counsel. (FAP at 2, 5.) Petitioner deleted the claim regarding his

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parole denial and, therefore, has waived that claim. The First Amended Petition

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supersedes the initial petition and waives any claims from that petition. See

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Sechrest v. Ignacio, 549 F.3d 789, 804 (9th Cir. 2008) (“The filing of a new

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petition cancels out and waives any claims from the old petition.”).

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II.

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DISCUSSION

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The Petition was filed after enactment of the Antiterrorism and Effective

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Death Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA

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in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059,

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138 L. Ed. 2d 481 (1997).

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The AEDPA provides, in pertinent part: “Before a second or successive

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application permitted by this section is filed in the district court, the applicant shall

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move in the appropriate court of appeals for an order authorizing the district court

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to consider the application.” 28 U.S.C. § 2244(b)(3)(A). A district court does not

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have jurisdiction to consider a “second or successive” petition absent

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authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152, 127 S.

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Ct. 793, 166 L. Ed. 2d 628 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th

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Cir. 2001) (“When the AEDPA is in play, the district court may not, in the absence

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of proper authorization from the court of appeals, consider a second or

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successive habeas application.”) (citation and quotation marks omitted).

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Here, the Petition is a second or successive petition challenging the same

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1982 conviction and sentence imposed by the same judgment of the state court
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as in Petitioner’s seven prior habeas actions in this court. (Case Numbers CV

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04-5850-FMC (SH), CV 05-08973-FMC (SH), CV 08-4291-FMC (SH), 09-0826-

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FMC (SH), 09-9457-MMM (SH), 11-7095-MMM (SH) and 12-2394-MMM (SH).)

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The Ninth Circuit has denied Petitioner’s applications to file a successive petition

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three times. (Dkt. No. 55, CV 04-5850-FMC (SH); Dkt. No. 5, Case No. 09-826

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FMC (SH); Dkt. No. 4, Case No. 09-9457 MMM (SH).)

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Rule 4 of the Rules Governing Section 2254 Cases in the United States

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Courts provides that “[i]f it plainly appears from the face of the petition and any

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attached exhibits that the petitioner is not entitled to relief in the district court, the

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judge must dismiss the petition and direct the clerk to notify the petitioner.” Here,

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summary dismissal is warranted.

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III.

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ORDER

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IT IS HEREBY ORDERED that Judgment be entered summarily dismissing
the Petition and action for lack of subject matter jurisdiction.

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DATED: February 10, 2016.

S. JAMES OTERO
United States District Judge

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