Mario Madrigal Miranda v. Daniel Paramo

Filing 3

ORDER OF DISMISSAL by Judge Josephine L. Staton. IT IS ORDERED that the Petition 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

MARIO MADRIGAL MIRANDA,

14

Petitioner,

15
16
17
18

v.
DANIEL PARAMO, Warden RJDCF,
Respondent.

) Case No. CV 17-02821-JLS (AS)
)
)
)
ORDER OF DISMISSAL
)
)
)
)
)
)
)
)

19
20
BACKGROUND
21
22
On April 13, 2017, Mario Madrigal Miranda (“Petitioner”), a
23
California state prisoner proceeding pro se, filed a Petition for
24
Writ of Habeas Corpus by a Person in State Custody pursuant to 28
25
U.S.C. § 2254 (“Petition”).

(Docket Entry No. 1).

Petitioner

26
challenges his 2007 convictions for murder and kidnapping and his
27
sentence of life without the possibility of parole plus ten years,
28

1

in Los Angeles County Superior Court1 (Case No. GA059712).

2

Petition at 1-2).

3

federal habeas relief: (1) “The evidence was insufficient to prove

4

premeditated [sic] and deliberation;” (2) “Petitioner could not

5

have validly been convicted of felony murder based on the assumed

6

kidnapping;” (3) “[Petitioner] could not validly be convicted of

7

felony murder based on either the kidnapping or robbery;” (4)

8

“Defense counsel’s conduct and the court’s response to it denied

9

[Petitioner] his rights to effective assistance of counsel and a

10

fair trial;” and (5) “The conviction imposed in this case was not

11

commensurate

12

admonishments[]

13

pursuant to the California felony murder rule.”

14

Memorandum at 2, 7-432).

(See

The Petition alleges the following grounds for

with
and

the

jury’s

evidence

instruction

on

their

under

the

repeated

expressed

findings

(Petition,

15
16

On May 12, 2010, Petitioner filed a Petition for Writ of

17

Habeas Corpus pursuant to 28 U.S.C. § 2254 in which he challenged

18

the same 2007 convictions.

19

McEwen, Case No. CV 10-03552-MMM (MAN); Docket Entry No. 1 (“the

20

prior habeas action”).

21

Order and Judgment denying that habeas petition with prejudice,

See Mario Miranda Madrigal v. Leland

On June 13, 2013, the Court issued an

22
23
24
25
26
27

1

A Los Angeles Superior Court jury convicted Petitioner
of one count of murder and one count of kidnapping and found true
the allegation that the murder was committed while Petitioner was
engaged in the commission of the kidnapping.
Petitioner was
sentenced to state prison for life without the possibility of
parole, plus ten years. (See Mario Miranda Madrigal v. Leland
McEwen, Case No. CV 10-03552-MMM (MAN); Docket No. 16 at 2).
2

28

The Court refers to Petitioner’s page-numbering system
in citing to the Memorandum.
2

1

in

2

Magistrate Judge.

3

date, the Court denied a certificate of appealability. (Id.;

4

Docket Entry No. 23).

accordance

with

the

findings

and

recommendations

(Id.; Docket Entry Nos. 21-22).

of

the

On the same

5
6

DISCUSSION

7
8

The Antiterrorism and Effective Death Penalty Act of 1996

9

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

10
11
12
13
14

that:
(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.

15
16

(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.

17
18
19
20
21

(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-(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

22
23

(B)(i) the factual predicate for the claim could
not have been discovered previously through the exercise
of due diligence; and

24

27

(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.

28

(3)(A) Before a second or successive application

25
26

3

1
2

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.

3
4
5
6
7
8
9
10
11
12
13
14
15
16

(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 shall dismiss any claim
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.

17
28 U.S.C. § 2244(b)(3) “creates a ‘gatekeeping’ mechanism for
18
the consideration of second or successive applications in district
19
court.

The prospective applicant must file in the court of

20
appeals a motion for leave to file a second or successive habeas
21
application in the district court.

§ 2244(b)(3)(A).”

Felker v.

22
Turpin, 518 U.S. 651, 657 (1996).
23
24
The

instant

Petition

and

the

prior

habeas

action

both

25
challenge Petitioner’s custody pursuant to the same 2007 judgment
26
entered by the Los Angeles County Superior Court.

Accordingly,

27
the instant Petition, filed on April 13, 2017, well after the
28
4

1

effective date of the AEDPA, is a second or successive habeas

2

petition for purposes of 28 U.S.C. § 2244.

3

was required to obtain authorization from the Court of Appeals

4

before filing the present Petition. See 28 U.S.C. §2244(b)(3)(A).

5

No such authorization has been obtained in this case.

Therefore, Petitioner

6
7

Moreover, the claims asserted in the instant Petition do not

8

appear to fall within the exceptions to the bar on second or

9

successive petitions because the asserted claims are not based on

10

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

11

made retroactive to cases on collateral review by the Supreme

12

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

13

656, 662 (2001).3

14

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

15

an order authorizing the district court to consider his second or

16

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

17

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

18

receive authorization from the Court of Appeals before filing

19

second or successive petition, “the District Court was without

20

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

21

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

22

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

23

court of appeals before ‘a second or successive habeas application

24

under § 2254’ may be commenced.”).

25

obtained authorization from the Ninth Circuit Court of Appeals,

However, this determination must be made by

Because Petitioner has not

26
3

27
28

The cases Petitioner relies on -- People v. Chiu, 59
Cal.4th 155 (2014) and People v. Banks, 61 Cal.4th 788 (2015)
(see Petition at ii, Memorandum at 1-2, 33, 39) -– are California
Supreme Court cases.
5

1

this Court cannot entertain the present Petition.

2

Stewart, supra.

See Burton v.

3
4

ORDER

5
6
7

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

8
9

LET JUDGMENT BE ENTERED ACCORDINGLY.

10
11

DATED:

April 24, 2017

12
13
14

___________________________
JOSEPHINE L. STATON
UNITED STATES DISTRICT JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
6