Charles F. Coddie v. John Sutton

Filing 4

ORDER by Magistrate Judge Karen E. Scott Summarily Dismissing Petition for Writ of Habeas Corpus for Lack of Subject Matter Jurisdiction. IT IS THEREFORE ORDERED that this action be summarily dismissed without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. (mba)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHARLES F. CODDIE, 12 Petitioner, 13 v. 14 15 16 JOHN SUTTON, Warden, Respondent. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 16-09404-PA (KES) ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION 18 19 On December 20, 2016, Charles F. Coddie (“Petitioner”) filed a Petition 20 for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 21 § 2254. (Dkt. 1.) Petitioner also consented to having a United States Magistrate 22 Judge conduct all proceedings in this case. (Dkt. 2.) The Petition is the second 23 habeas corpus petition that Petitioner has filed in this Court stemming from his 24 2002 state court convictions and sentence in the Los Angeles Superior Court, 25 case no. KA054598. 26 Under Rule 4 of the Rules Governing Section 2254 Cases in the United 27 States District Courts, a habeas petition filed by a prison in state custody 28 “must” be summarily dismissed “[i]f it plainly appears from the petition and 1 any attached exhibits that the petitioner is not entitled to relief in the district 2 court[.]” For the reasons set forth below, the Petition must be dismissed as a 3 second or successive petition pursuant to 28 U.S.C. § 2244(b). 4 I. 5 BACKGROUND 6 A. State Court Proceedings 7 On April 17, 2002, Petitioner was convicted by a Los Angeles County 8 Superior Court jury of one count of attempted murder and one count of assault 9 with a firearm. The jury also found true a number of associated allegations 10 regarding petitioner’s firearm use and infliction of great bodily injury on the 11 victim. The trial court sentenced petitioner to imprisonment for an 12 indeterminate term of 30 years to life. 13 Petitioner appealed, claiming that the trial court erred in failing to give 14 jury instructions on attempted voluntary manslaughter and lesser included 15 offenses. He also claimed that two of the jury instructions given were 16 prejudicial and unconstitutionally coercive. On September 30, 2003, the 17 California Court of Appeal 18 conviction. People v. Coddie, 2003 WL 22244068, at *3 (Cal. App. 2d Sept. 19 30, 2003) (unpublished). Petitioner then filed a petition for review in the 20 California Supreme Court, which was denied without comment or citation to 21 authority on December 17, 2003. denied these claims and affirmed Petitioner’s 22 Petitioner’s first state collateral challenge consisted of a petition for writ 23 of habeas corpus constructively filed in the Los Angeles County Superior 24 Court on April 12, 2016, approximately thirteen years after Petitioner’s 25 sentence became final. Petitioner alleged therein that the prosecution failed to 26 plead and prove Petitioner’s firearm enhancements, and that Petitioner was 27 denied effective assistance of appellate counsel. That petition was denied on 28 April 18, 2016. (Dkt. 1 at 12-15.) The court found that Petitioner failed to 2 1 explain his significant delay in seeking habeas relief, and that these issues were 2 not raised on appeal and therefore were barred from state habeas 3 consideration. (Id.) 4 Petitioner then raised the same claims to the California Court of Appeal 5 on May 2, 2016. (Dkt. 1 at 4.) On May 5, 2016, the Court of Appeal 6 summarily denied Petitioner’s habeas petition without comment or citation to 7 authority. (Dkt. 1 at 18.) Petitioner then raised the same claims in a habeas 8 petition to the California Supreme Court on June 29, 2016. (Dkt. 1 at 4.) On 9 June 29, 2016, the California Supreme Court denied Petitioner’s habeas 10 petitioner without comment or citation to authority. (Dkt. 1 at 21.) 11 B. Prior Federal Habeas Petitions1 12 1. 13 On October 25, 2004, Petitioner filed a “Motion for Extension” which 14 was assigned case no. 2:04-cv-08811-GLT-FMO. On November 4, 2016, the 15 Court denied the motion and administratively closed the case. The Court 16 found that, because Petitioner did not currently have a petition for habeas 17 corpus pending before the Court, the case-and-controversy requirement of 18 Article III was not met. Motion for Extension of Time to File Habeas Petition. 19 2. 20 On December 3, 2004, Petitioner filed a Petition for Writ of Habeas 21 Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“First 22 Petition”), which was assigned case no. 2:04-cv-09874-PA-FMO. The First 23 Petition challenged Petitioner’s convictions in Los Angeles County Superior 24 Court, case no. KA054598. The First Petition raised four claims relating to 25 jury instructions that the trial court either improperly gave or erroneously 26 27 First Federal Habeas Petition. The Court takes judicial notice of its own records. Fed. R. Evid. 201(b)(2); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 1 28 3 1 failed to give. (See 2:04-cv-9874-PA-FMO, Dkt. 19 at 5-6 [Report and 2 Recommendation].) 3 On July 18, 2005, the Magistrate Judge assigned to the case issued a 4 Report and Recommendation recommending that the First Petition be 5 dismissed. Id. at 22. Petitioner did not file objections. On August 23, 2005, the 6 Court adopted the Report and Recommendation and dismissed the First 7 Petition with prejudice. (2:04-cv-9874-PA-FMO, Dkt. 21 [Order Adopting 8 Report and Recommendation].) The Court also declined to issue a certificate 9 of appealability under 28 U.S.C. § 2253(c)(2). 10 II. 11 DISCUSSION 12 The instant Petition raises two claims for relief: (1) the prosecution failed 13 to plead and prove a gang/firearm allegation2 that added an indeterminate 14 term of 25 years to life to Petitioner’s sentence; and (2) ineffective assistance of 15 appellate counsel for failing to raise the issue in ground one. (Dkt. 1 at 5-6 ¶ 8.) 16 The Petition now pending is governed by 28 U.S.C. § 2244(b), which 17 provides in pertinent part as follows: 18 (b)(1) A claim presented in a second or successive habeas corpus 19 application under section 2254 that was presented in a prior 20 application shall be dismissed. 21 (2) A claim presented in a second or successive habeas corpus 22 application under section 2254 that was not presented in a prior 23 24 25 26 27 Petitioner’s claim in the instant Petition is that California Penal Code section 12022.53(e)(1) was not pled or proven by the prosecution. Section 12022.53(e)(1) is a gang enhancement, for which Petitioner was neither charged nor convicted. Instead, he was convicted under sections 12022.53(bd), which relate to Petitioner’s use of a firearm during the crime, and do not require a showing of gang affiliation. 2 28 4 1 application shall be dismissed unless-- 2 (A) the applicant shows that the claim relies on a new rule of 3 constitutional law, made retroactive to cases on collateral review 4 by the Supreme Court, that was previously unavailable; or 5 (B)(i) the factual predicate for the claim could not have been 6 discovered previously through the exercise of due diligence; and 7 (ii) the facts underlying the claim, if proven and viewed in light of 8 the evidence as a whole, would be sufficient to establish by clear 9 and convincing evidence that, but for constitutional error, no 10 reasonable factfinder would have found the applicant guilty of the 11 underlying offense. 12 (3)(A) Before a second or successive application permitted by this 13 section is filed in the district court, the applicant shall move in the 14 appropriate court of appeals for an order authorizing the district 15 court to consider the application. 16 28 U.S.C. § 2244(b) (emphasis added). 17 The Petition now pending constitutes a second and/or successive 18 petition challenging the same conviction as Petitioner’s prior habeas petition, 19 within the meaning of 28 U.S.C. § 2244(b). Thus, it was incumbent on 20 Petitioner under § 2244(b)(3)(A) to secure an order from the Ninth Circuit 21 authorizing the District Court to consider his new claims prior to the filing of 22 the instant Petition. Petitioner’s failure to secure an order from the Ninth 23 Circuit deprives this Court of subject matter jurisdiction. Cooper v. Calderon, 24 274 F.3d 1270, 1274 (9th Cir. 2001), cert. denied, 538 U.S. 984 (2003). 25 // 26 // 27 // 28 // 5 1 IT IS THEREFORE ORDERED that this action be summarily 2 dismissed without prejudice pursuant to Rule 4 of the Rules Governing Section 3 2254 Cases in the United States District Courts. 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 6 DATED: December 28, 2016 7 8 9 10 ___________________________________ KAREN E. SCOTT United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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