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)

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