Christopher D.S. Sudduth Sr. v. Dave Davey

Filing 6

ORDER OF DISMISSAL by Judge Christina A. Snyder. IT IS ORDERED that the Petition 1 be dismissed without prejudice. (See Order for complete details) (afe)

1
2
3
4
5
6
7
8
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION
11
12
13
14
15
16
17
18

CHRISTOPHER D.S. SUDDUTH SR., ) Case No. CV 16-03561-CAS (AS)
)
Petitioner,
) ORDER OF DISMISSAL
)
)
v.
)
)
DAVE DAVEY,
)
)
Respondent.
)
)

19
20

BACKGROUND

21
22

On May 23, 2016, Petitioner, a California state prisoner

23

proceeding pro se, filed a Petition for Writ of Habeas Corpus by

24

a

25

(“Petition”).

26

1995 convictions for first degree murder and attempted murder and

27

the sentence imposed for those convictions in Los Angeles County

28

Person

in

State

Custody

pursuant

(Docket Entry No. 1).

to

28

U.S.C.

§

2254

Petitioner challenges his

1

Superior Court1 (Case No. TA030680).

2

following grounds for habeas relief: (1) “The identification of

3

the petitioner as a homicide suspect is so deficient it violates

4

the petitioner[’]s due process rights of the U.S. Constitution.”;

5

and (2) Petitioner received ineffective assistance of counsel

6

based on his appellate counsel’s failure to argue, on appeal,

7

that Petitioner’s convictions were the result of overly suggestive

8

identifications (Petition at 5-6, Attachment at 1-2 [“Declaration

9

of Innocence”], Memorandum of Points and Authorities at 1-8).

The Petition alleges the

10
11

Prior Habeas Petitions Challenging 1995 Convictions

12
13
14

Petitioner has filed several habeas actions challenging the
same 1995 judgment entered by the Los Angeles Superior Court:

15
16

Case No. CV 98-04330-AAH (RZ)

17
18

On June 1, 1998, Petitioner filed a Petition for Writ of

19

Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C.

20

§ 2254.

21

No. CV 98-04330-AAH; Docket Entry No. 1.

22

District court issued an Order and Judgment dismissing that habeas

See Christopher Sudduth v. Susan Yearwood, et al., Case
On July 15, 1998, the

23
24
25
26
27
28

1

On January 24, 1995, a Los Angeles
Court jury convicted Petitioner of one count
murder and two counts of attempted murder.
sentenced to prison for 40 years to life
conviction and life with the possibility of
attempted murder convictions. (See Christopher
No. CV 98-08256-AHM (RZ); Docket No. 14 at 3).
2

County Superior
of first degree
Petitioner was
for the murder
parole for the
D. Sudduth, Case

1

petition without prejudice based on Petitioner’s failure to

2

exhaust state remedies with respect to all claims alleged therein.

3

(Id.; Docket Entry Nos. 5-6).

4
5

Case No. CV 98-08256-AHM (RZ)

6
7

On October 8, 1998, Petitioner filed a Petition for Writ of

8

Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C.

9

§ 2254.

See Christopher D. Sudduth v. Robert Ayers, Jr., et al.,

10

Case No. CV 98-08256-AHM (RZ); Docket Entry No. 1.

11

1999, the District court issued an Order and Judgment denying that

12

habeas petition with prejudice as untimely, in accordance with the

13

finding and conclusion of the Magistrate Judge (with one inserted

14

correction). (Id.; Docket Entry Nos. 14-15). On October 5, 2000,

15

the District court denied a certificate of appealability.

16

Docket Entry No. 17).

On June 29,

(Id.;

17
18

Case No. CV 00-07110-AHM (RZ)

19
20

On June 6, 2000, Petitioner filed a Petition for Writ of

21

Habeas Corpus.

22

Case No. CV 00-07110-AHM (RZ); Docket Entry No. 1.

23

2000, the District Court issued an Order summarily dismissing that

24

habeas petition without prejudice as an unauthorized successive

25

petition.

26

Ninth Circuit Court of Appeals denied Petitioner’s request for a

27

certificate of appealability.

28

See Christopher Sudduth v. Robert Ayers, et al.,

(Id.; Docket Entry No. 6).

On July 18,

On December 5, 2000, the

(Id.; Docket Entry No. 12).
3

1

Case No. CV 04-03197-AHM (RZ)

2
3

On May 5, 2004, Petitioner filed a Petition for Writ of

4

Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C.

5

§ 2254.

6

CV 04-03197-AHM (RZ); Docket Entry No. 1.

7

District court issued an Order summarily dismissing that habeas

8

petition without prejudice as an unauthorized successive petition.

9

(Id.; Docket Entry No. 4). On August 18, 2004, the District court

10

denied Petitioner’s request for a certificate of appealability.

11

(Id.; Docket Entry No. 6).

12

Circuit

13

appealability. (Id.; Docket Entry No. 10). On December 15, 2004,

14

the

15

authorization to file a second or successive habeas petition in

16

the district court.

See Christopher D. Sudduth v. Cheryl K. Pliler, Case No.

denied

Ninth

On September 9, 2004, the Ninth

Petitioner’s

Circuit

On July 19, 2004, the

request

denied

for

Petitioner’s

a

certificate

application

of

for

(Id.; Docket Entry No. 12).

17
18

DISCUSSION

19
20

The Antiterrorism and Effective Death Penalty Act of 1996

21

(“AEDPA”), enacted on April 24, 1996, provides in pertinent part

22

that:

23
24
25
26

(a) No circuit or district judge shall be required
to entertain an application for a writ of habeas corpus
to inquire into the detention of a person pursuant to a
judgment of a court of the United States if it appears
that the legality of such detention has been determined
by a judge or court of the United States on a prior
application for a writ of habeas corpus, except as
provided in §2255.

27
28

4

1
2
3
4

(b)(1) A claim presented in a second or successive
habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive
habeas corpus application under section 2254 that was
not presented in a prior application shall be dismissed
unless--

5
6
7
8
9
10
11
12

(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 fact
finder would have found the applicant guilty of the
underlying offense.

13
14
15

(3)(A) Before a second or successive application
permitted by this section is filed in the district
court, the applicant shall move in the appropriate court
of appeals for an order authorizing the district court
to consider the application.

16
17
18
19
20
21
22
23
24
25
26
27
28

(B) A motion in the court of appeals for an order
authorizing the district court to consider a second or
successive application shall be determined by a threejudge panel of the court of appeals.
(C) The court of appeals may authorize the filing
of a second or successive application only if it
determines that the application makes a prima facie
showing that the application satisfies the requirements
of this subsection.
(D) The court of appeals shall grant or deny the
authorization to file a second or successive application
not later than 30 days after the filing of the motion.
(E) The grant or denial of an authorization by a
court of appeals to file a second or successive
application shall not be appealable and shall not be the
subject of a Petition for Rehearing or for a Writ of
Certiorari.
(4)

A

district

court
5

shall

dismiss

any

claim

1
2

presented in a second or successive application that the
court of appeals has authorized to be filed unless the
applicant
shows
that
the
claim
satisfies
the
requirements of this section. 28 U.S.C. § 2244.

3
4

28 U.S.C. § 2244(b)(3) “creates a ‘gatekeeping’ mechanism for

5

the consideration of second or successive applications in district

6

court.

7

appeals a motion for leave to file a second or successive habeas

8

application in the district court.

9

Turpin, 518 U.S. 651, 657 (1996).

The prospective applicant must file in the court of

§ 2244(b)(3)(A).”

Felker v.

10
11

The instant Petition, filed on May 23, 2016, as well as the

12

prior habeas actions which also challenge Petitioner’s custody

13

pursuant to the same 1995 judgment entered by the Los Angeles

14

County Superior Court, is a second or successive habeas

15

for purposes of 28 U.S.C. § 2244.

16

required to obtain authorization from the Court of Appeals before

17

filing the present Petition.

18

such authorization has been obtained in this case.

petition

Therefore, Petitioner was

See 28 U.S.C. §2244(b)(3)(A).

No

19
20

Moreover, the claim(s) asserted in the instant Petition do

21

not appear to fall within the exceptions to the bar on second or

22

successive petitions because the asserted claims are not based on

23

newly discovered facts or a “a new rule of constitutional law,

24

made retroactive to cases on collateral review by the Supreme

25

Court, that was previously unavailable.” Tyler v. Cain, 533 U.S.

26

656, 662 (2001).

27

United States Court of Appeals upon a petitioner’s motion for an

28

However, this determination must be made by the

6

1

order authorizing the district court to consider his second or

2

successive petition. 28 U.S.C. § 2244(b); see also Burton v.

3

Stewart, 549 U.S. 147, 157 (2007) (where the petitioner did not

4

receive authorization from the Court of Appeals before filing

5

second or successive petition, “the District Court was without

6

jurisdiction to entertain [the petition]”); Barapind v. Reno, 225

7

F.3d 1100, 1111 (9th Cir. 2000) (“[T]he prior-appellate-review

8

mechanism set forth in § 2244(b) requires the permission of the

9

court of appeals before ‘a second or successive habeas application

10

under § 2254’ may be commenced.”).

11

obtained authorization from the Ninth Circuit Court of Appeals,

12

this Court cannot entertain the present Petition.

13

Stewart, supra.

Because Petitioner has not

See Burton v.

14
15

To the extent that Petitioner is attempting to allege a claim

16

of actual innocence in an attempt to bypass the successive

17

petition hurdle, see McQuiggin v. Perkins, 133 S.Ct. 1924, 1928

18

(2013)(“We hold that actual innocence, if proved, serves as a

19

gateway through which a petitioner may pass whether the impediment

20

is a procedural bar, as it was in Schlup and House, or, as in this

21

case, expiration of the statute of limitations), Petitioner has

22

failed to show the actual innocence exception applies in his case.

23

Under

24

limitations, a petitioner must show that “‘in light of the new

25

evidence, no juror, acting reasonably, would have voted to find

26

him guilty beyond a reasonable doubt.’”

27

supra (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)); see

28

the

actual

innocence

exception

7

to

the

statute

of

McQuiggin v. Perkins,

1

House v. Bell, 547 U.S. 518, 538 (2006)(“A petitioner’s burden at

2

the gateway stage is to demonstrate that more likely than not, in

3

light of the new evidence, no reasonable juror would find him

4

guilty

5

negative, that more likely than not any reasonable juror would

6

have reasonable doubt.”).

beyond

a

reasonable

doubt–or,

to

remove

the

double

7
8
9

Here, Petitioner’s asserted claim of actual innocence is
merely

a

claim

of

evidentiary

error

(overly

suggestive

10

identifications) and ineffective assistance of appellate counsel.

11

See Bousley v. United States, 523 U.S. 614, 623 (1998) (“‘Actual

12

innocence’

13

insufficiency.”); Morales v. Ornoski, 439 F.3d 529, 533-34 (9th

14

Cir. 2006).

15

a showing of actual innocence, supported by new reliable evidence.

16

See Schlup v. Delo, supra, 513 U.S. at 324 (“To be credible, [a

17

claim of actual innocence] requires petitioner to support his

18

allegations of constitutional error with new reliable evidence--

19

whether

20

eyewitness accounts, or critical physical evidence--that was not

21

presented at trial.”).

22

“exceptional

23

innocence.”

24

Delo, supra (“[E]xperience has taught us that a substantial claim

25

that constitutional error has caused the conviction of an innocent

26

person is extremely rare.”); McQuiggin v. Perkins, supra (“We

27

caution, however, that tenable actual-innocence gateway pleas are

28

it

means

factual

innocence,

not

mere

legal

Moreover, Petitioner has not even purported to make

be

exculpatory

case[]

scientific

evidence,

trustworthy

Petitioner simply has not presented an

involving

a

compelling

claim

of

actual

House v. Bell, supra, 547 U.S. at 521; see Schlup v.

8

1

rare”).

2
3

Consequently, it does not appear that the actual innocence

4

exception to filing a successive petition would apply, although

5

this is a determination which must be made by the Ninth Circuit

6

Court of Appeals.

7
8

ORDER

9
10
11

Accordingly, IT IS ORDERED that the Petition be dismissed
without prejudice.

12
13

LET JUDGMENT BE ENTERED ACCORDINGLY.

14
15

DATED:

June 2, 2016

16
17
18

____________________________
CHRISTINA A. SNYDER
UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26
27
28

9