James H. Garcia v. Debbie Asoncion

Filing 11

MEMORANDUM AND ORDER SUMMARILY DENYING PETITION AND DISMISSING ACTION by Judge Dale S. Fischer. Thus, it is ORDERED that Judgment be entered summarily DENYING the Petition and DISMISSING this action without prejudice. (See document for further details.) (iva)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 Petitioner, 11 MEMORANDUM AND ORDER SUMMARILY DENYING PETITION AND DISMISSING ACTION v. 12 13 Case No. CV 16-8023-DSF-KK JAMES H. GARCIA, DEBBIE ASONCION, Warden, Respondent. 14 15 16 17 I. 18 INTRODUCTION Petitioner James H. Garcia (“Petitioner”) has filed a pro se Petition for Writ 19 20 of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 21 (“Petition”) challenging his 2006 conviction and sentence for second degree 22 murder. As discussed below, the Court finds the Petition is a second or successive 23 petition and thus, summarily DENIES the Petition and DISMISSES this action 24 without prejudice. 25 /// 26 /// 27 /// 28 /// 1 II. 2 BACKGROUND 3 On August 7, 2006, following a jury trial in California Superior Court for the 4 County of Los Angeles, Petitioner was convicted of second degree murder in 5 violation of section 187 of the California Penal Code. ECF Docket No. (“Dkt.”) 1, 6 Pet. at 2; see also Garcia v. Uribe, No. CV 09-2919-DSF (CW), 2011 WL 3664901, 7 at *1 (C.D. Cal. July 19, 2011). The jury also found Petitioner personally used a 8 deadly or dangerous weapon (a knife) in the commission of the offense in violation 9 of section 12022(b)(1) of the California Penal Code. Id. On January 16, 2007, 10 Petitioner was sentenced to a term of thirty-six years to life in state prison. Id. 11 Petitioner appealed his conviction to the California Court of Appeal, which 12 affirmed the judgment in an unpublished decision on February 22, 2008. Garcia, 13 2011 WL 3664901, at *1. Petitioner filed a Petition for Review in the California 14 Supreme Court, which was summarily denied on April 30, 2008. Id. 15 On November 19, 2008, Petitioner filed a habeas petition in Los Angeles 16 Superior Court, which was denied in a reasoned order on February 5, 2009. Id. On 17 February 17, 2009, Petitioner filed a habeas petition in the California Supreme 18 Court, which was denied without comment or citation to authority on July 15, 19 2009. Id. 20 On April 27, 2009, Petitioner filed a habeas petition in this Court (the “2009 21 Petition”) challenging his 2006 conviction on the grounds of (1) false evidence; (2) 22 improperly obtained confession; and (3) judicial bias. Id. On August 22, 2011, the 23 Court denied the 2009 Petition on the merits and dismissed the action with 24 prejudice. Garcia v. Uribe, No. CV 09-2919-DSF (CW), 2011 WL 3667761, at *1 25 (C.D. Cal. Aug. 22, 2011). 26 On June 15, 2015, Petitioner filed a habeas petition with the California Court 27 of Appeal, case number B264769, on the grounds of (1) ineffective assistance of 28 counsel; and (2) “vindictive prosecution.” Pet. at 2-3; California Courts, 2 1 Appellate Courts Case Information, Docket, (Oct. 28, 2016, 3:56 PM), 2 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=2 3 111685&doc_no=B264769. On June 26, 2015, the California Court of Appeal 4 denied the petition. Id. 5 On July 24, 2015, Petitioner filed a habeas petition with the California 6 Supreme Court, case number S228063, on the grounds of (1) ineffective assistance 7 of counsel; and (2) “vindictive prosecution.” Pet. at 3; California Courts, 8 Appellate Courts Case Information, Docket, (Oct. 28, 2016, 3:58 PM), 9 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2 10 115547&doc_no=S228063. On October 21, 2015, the California Supreme Court 11 denied the petition with citation to In re Robbins, 18 Cal. 4th 770, 780 (1998) and 12 In re Clark, 5 Cal. 4th 750, 767-69 (1993). Id. 13 On October 18, 2016, Petitioner constructively filed the instant Petition 14 challenging his 2006 conviction on the grounds of (1) ineffective assistance of 15 counsel; and (2) “vindictive prosecution.” Pet. at 5-24. 16 On October 31, 2016, the Court issued an Order to Show Cause why the 17 Petition should not be summarily dismissed as a second or successive petition 18 which has not been authorized by the Ninth Circuit. Dkt. 4. On January 13, 2017, 19 Petitioner constructively filed a response to the Order to Show Cause in which he 20 concedes “this is a second petition,” and fails to provide authorization from the 21 Ninth Circuit allowing such second petition. Dkt. 10. 22 III. 23 DISCUSSION 24 THE PETITION IS SUBJECT TO DISMISSAL AS A SECOND OR 25 SUCCESSIVE PETITION 26 Habeas petitioners generally may file only one habeas petition challenging 27 their conviction or sentence. See 28 U.S.C. § 2244(b)(1). Hence, if a prior petition 28 raised claims that were adjudicated on the merits, petitioner must “move in the 3 1 appropriate court of appeals for an order authorizing the district court to consider 2 the [second or successive petition].” Id. § 2244(b)(3)(A); McNabb v. Yates, 576 3 F.3d 1028, 1029 (9th Cir. 2009); Goodrum v. Busby, 824 F.3d 1188, 1194 (9th Cir. 4 2016) (“As a general principle, . . . a petition will not be deemed second or 5 successive unless, at a minimum, an earlier-filed petition has been finally 6 adjudicated.”). Absent proper authorization from the court of appeals, district 7 courts lack jurisdiction to consider second or successive petitions and must dismiss 8 such petitions without prejudice to refiling if the petitioner obtains the necessary 9 authorization. Burton v. Stewart, 549 U.S. 147, 152-53, 127 S. Ct. 793, 166 L. Ed. 10 2d 628 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (“When 11 the AEDPA is in play, the district court may not, in the absence of proper 12 authorization from the court of appeals, consider a second or successive habeas 13 application.” (citation omitted)); 28 U.S.C. § 2244(b)(2). 14 Here, the instant Petition, like Petitioner’s 2009 Petition, challenges 15 Petitioner’s 2006 conviction and sentence. See Dkt. 1, Pet. The Court dismissed 16 Petitioner’s 2009 Petition on the merits. See Garcia, 2011 WL 3664901, report and 17 recommendation adopted, 2011 WL 3667761. Consequently, the instant Petition is 18 second or successive to the 2009 Petition. As Petitioner has not presented any 19 documentation indicating the Ninth Circuit has issued “an order authorizing the 20 district court to consider the application,” the Court lacks jurisdiction over the 21 claims, and the instant Petition is subject to dismissal. 28 U.S.C. § 2244(b)(3)(A). 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 4 1 IV. 2 ORDER 3 4 Thus, it is ORDERED that Judgment be entered summarily DENYING the Petition and DISMISSING this action without prejudice. 5 6 Dated: 1/27/17 7 HONORABLE DALE S. FISCHER United States District Judge 8 9 Presented by: 10 11 12 13 KENLY KIYA KATO United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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