Tyron Smith v. Debbie Asuncion

Filing 8

ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION; DENYING CERTIFICATE OF APPEALABILITY by Judge John A. Kronstadt Re Petition for Writ of Habeas Corpus (2254) 1 : (see document image for further details). This action is dismissed without prejudice for lack of subject matter jurisdiction pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. LET JUDGMENT BE ENTERED ACCORDINGLY. A Certificate of Appealability is DENIED. This is a final order, but it will not be appealable unless petitioner obtains a certificate of appealability from the Ninth Circuit. As required by Fed. R. Civ. P. 58(a)(1), final judgment will be issued separately. (ad)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

9
10
11

TYRON SMITH,

12

Petitioner,

13

vs.

14

DEBBIE ASUNCION, Warden,

15

Respondent.

16
17
18

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CV 17-03676-JAK (DTB)
ORDER SUMMARILY DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS FOR LACK OF SUBJECT
MATTER JURISDICTION
DENYING CERTIFICATE OF
APPEALABILITY

19
20
21

PROCEEDINGS
On May 16, 2017, petitioner filed a Petition for Writ of Habeas Corpus (“Pet.”)

22 pursuant to 28 U.S.C. § 2254 along with supporting exhibits (“Pet. Exh.”). The
23 Petition purports to be directed to a 2007 conviction sustained by petitioner in Los
24 Angeles County Superior Court in Case No. TA084803. (See Pet. at 1, 7.) Petitioner
25 purports to be raising a single ground for relief contending that the mandatory life
26 sentence he received while still a minor violates the Eighth Amendment’s proscription
27 against cruel and unusual punishment. (See Pet. at 1-2, 10-11.)
28 / / /
1

1

Based on its review of the Petition, as well as information derived from the

2 docket of the United States District Court, Central District of California, it appeared
3 to the Court that the Petition herein constituted a second or successive petition under
4 28 U.S.C. § 2244(d), as petitioner previously sought habeas relief from the same 2007
5 Los Angeles County Superior Court judgment of conviction in a petition filed in this
6 Court, Case No. CV 11-06026-JAK (DTB) (the “Prior Action”). On September 17,
7 2012, Judgment was entered in the Prior Action dismissing that petition with
8 prejudice. Petitioner filed a notice of appeal from that Judgment on November 7,
9 2012, and the Ninth Circuit affirmed the Judgment on October 29, 2013.
10

Therefore, on May 22, 2017, the Court issued an Order to Show Cause (“OSC”)

11 ordering petitioner to show cause as to why the Court should not recommend that this
12 action be dismissed on the ground that petitioner failed to secure an order from the
13 Ninth Circuit authorizing the District Court to consider the Petition, prior to his filing
14 of it in this Court. On June 12, 2017, petitioner filed his Response to the OSC. In his
15 Response, petitioner acknowledges that the Court is correct as to the nature of the
16 instant Petition and that he has filed an application for permission to file a second or
17 successive petition with the Ninth Circuit. (Response at 1.) Petitioner requests that
18 the Court “wait and see what the Ninth Circuit does with the ‘Application for
19 permission motion’” before ruling on the OSC. (Id.)
20
21

DISCUSSION

22 I.

The Court lacks jurisdiction to consider the Petition as it is second or

23

successive to his prior petitions.

24

The Court has considered petitioner’s Response to the OSC and rules as

25 follows: The Petition pending constitutes a second or successive petition under the
26 Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”). Specifically,
27 under the AEDPA, 28 U.S.C. § 2244(b) reads, in pertinent part, as follows:
28 / / /
2

1

“(1) A claim presented in a second or successive habeas corpus

2

application under section 2254 that was presented in a prior application

3

shall be dismissed.

4

(2) A claim presented in a second or successive habeas corpus

5

application under section 2254 that was not presented in a prior

6

application shall be dismissed unless--

7

(A) the applicant shows that the claim relies on a new rule

8

of constitutional law, made retroactive to cases on collateral

9

review by the Supreme Court, that was previously unavailable; or

10

(B)(i) the factual predicate for the claim could not have

11

been discovered previously through the exercise of due diligence;

12

and

13

(ii) the facts underlying the claim, if proven and viewed in

14

light of the evidence as a whole, would be sufficient to establish

15

by clear and convincing evidence that, but for constitutional error,

16

no reasonable factfinder would have found the applicant guilty of

17

the underlying offense.

18

(3)(A) Before a second or successive application permitted by this

19

section is filed in the district court, the applicant shall move in the

20

appropriate court of appeals for an order authorizing the district court to

21

consider the application.”

22
23

Thus, the Petition now pending constitutes a second and/or successive petition

24 challenging the same conviction as the Prior Action in Case No. CV 11-06026-JAK
25 (DTB), within the meaning of 28 U.S.C. § 2244(b). As such, it was incumbent on
26 petitioner under § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing
27 the District Court to consider the Petition, prior to his filing of it in this Court.
28 Petitioner’s failure to do so deprives the Court of subject matter jurisdiction. See
3

1 Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). Moreover, since the Court
2 does not have jurisdiction to consider the Petition, it also lacks jurisdiction to consider
3 petitioner’s request to “wait and see what the Ninth Circuit does with the ‘Application
4 for permission motion.’”
5

For the foregoing reasons, IT IS ORDERED that this action be summarily

6 dismissed, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the
7 United States District Courts.
8
9 II.

Denial of Certificate of Appealability

10

Rule 11(a) of the Rules Governing § 2254 Actions provides:

11

(a) Certificate of Appealability. The district court must issue or deny a

12

certificate of appealability when it enters a final order adverse to the

13

applicant. Before entering the final order, the court may direct the

14

parties to submit arguments on whether a certificate should issue. If the

15

court issues a certificate, the court must state the specific issue or issues

16

that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the court

17

denies a certificate, the parties may not appeal the denial but may seek

18

a certificate from the court of appeals under Federal Rule of Appellate

19

Procedure 22. A motion to reconsider a denial does not extend the time

20

to appeal.

21
22

Under 28 U.S.C. § 2253(c)(2), a certificate of appealability (“COA”) may issue

23 “only if the applicant has made a substantial showing of the denial of a constitutional
24 right.” Here, the Court dismissed the Petition on the ground that it was a second or
25 successive petition. Thus, the Court’s determination of whether a COA should issue
26 is governed by the Supreme Court’s decision in Slack v. McDaniel, 529 U.S. 473, 120
27 S. Ct. 1595, 146 L. Ed. 2d 542 (2000), where the Supreme Court held that, “[w]hen
28 the district court denies a habeas petition on procedural grounds without reaching the
4

1 prisoner’s underlying constitutional claim, a COA should issue when the prisoner
2 shows, at least, that jurists of reason would find it debatable whether the petition states
3 a valid claim of the denial of a constitutional right and that jurists of reason would find
4 it debatable whether the district court was correct in its procedural ruling.” 529 U.S.
5 at 484. As the Supreme Court further explained:
6

Section 2253 mandates that both showings be made before the

7

court of appeals may entertain the appeal. Each component of the §

8

2253(c) showing is part of a threshold inquiry, and a court may find that

9

it can dispose of the application in a fair and prompt manner if it

10

proceeds first to resolve the issue whose answer is more apparent from

11

the record and arguments.

12 Id. at 485.
13
14

Here, the Court finds that its ruling that the Petition is second or successive is

15 not one in which “jurists of reason would find it debatable whether the district court
16 was correct in its procedural ruling.”
17
18
19

ORDER
This action is dismissed without prejudice for lack of subject matter jurisdiction

20 pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States
21 District Courts.
22 / / /
23 / / /
24 / / /
25 / / /
26 / / /
27 / / /
28 / / /
5

1

LET JUDGMENT BE ENTERED ACCORDINGLY.

2

A Certificate of Appealability is DENIED. This is a final order, but it will not

3 be appealable unless petitioner obtains a certificate of appealability from the Ninth
4 Circuit.1
5

As required by Fed. R. Civ. P. 58(a)(1), final judgment will be issued

6 separately.
7

8 DATED:

June 27, 2017

9
10

_______________________________
JOHN A. KRONSTADT
UNITED STATES DISTRICT JUDGE

11
12
13

Presented by:

14
15 _____________________________
David T. Bristow
16 United States Magistrate Judge
17
18
19
20
21
22
23
24
25
26
27

1

See Muth v. Fondren, 676 F.3d 815, 822 (9th Cir. 2012) (citing 28 U.S.C.
28 § 2253(c)(1)(B)), see also Fed. R. App. P. 22(b)(1).
6