Booten v. Rackley

Filing 3

ORDER TO SHOW CAUSE RE: DISMISSAL by Magistrate Judge Karen L. Stevenson. Response to Order to Show Cause due by 8/23/2017. To discharge the Order to Show Cause, Petitioner must file, no later than thirty days from this Order: (1) a First Amended Petition For Writ Of Habeas Corpus that explains why his Petition is not second and successive, or (2) authorization from the Ninth Circuit to file a second and successive petition. If Petitioner no longer wishes to pursue this action, he may voluntarily dismiss it by filing a signed document entitled Notice Of Voluntary Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). (rh)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2: 17-cv-05261-VBF (KS):
Title

Date: July 24, 2017

Timothy Booten v. R.J. Rackley

Present: The Honorable:

Karen L. Stevenson, United States Magistrate Judge

Roxanne Horan-Walker
Deputy Clerk

N/A
Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL
On July 17, 2017, Petitioner, a California state prisoner proceeding pro se, and in forma
pauperis, filed a Petition For Writ Of Habeas Corpus By A Person In State Custody (“Petition”)
pursuant to 28 U.S.C. § 2254. According to the Petition, Petitioner was convicted on November
19, 2010 of possession of marijuana with a gang enhancement. (Petition at 2.) The Petition and
its attachments indicate that Petitioner appealed his conviction to the California Court of Appeal,
which affirmed his conviction on December 15, 2013. (Petition at 3.) Petitioner then sought
review by the California Supreme Court, which denied review on January 21, 2017. (Petition at
4.)
On September 29, 2014, Petitioner filed a habeas petition in this Court in case number
2:14-cv-7707 VBF-KS (“Prior Federal Action”). (Petition at 7.) In the Prior Federal Action,
Petitioner raised five grounds for relief: (1) the conviction for possession of marijuana was the
product of an unlawful search warrant, lacking in probable cause; (2) insufficient evidence to
support his conviction for possession of marijuana for purpose of sales; (3) the “Superior Court
and Court of Appeal orders are superficial, illogical and contrary to the facts and the law of the
case;” (4) insufficient evidence supported the gang enhancement; and (5) ineffective assistance
of trial counsel. That petition was dismissed with prejudice on the merits on August 24, 2016.
(Doc. Nos. 43, 44, 45, 49, 50 in docket for case number 2:14-cv-7707-KS.)
On September 9, 2016, Petitioner filed a notice of appeal in the United States Court of
Appeals for the Ninth Circuit. (Doc. No. 52 in docket for case no. 2:14-cv-7707 VBF-KS.) On
March 8, 2017, the Ninth Circuit denied a certificate of appealability because Petitioner had “not
made a ‘substantial showing of the denial of a constitutional right.’ 28 U.S.C. § 2253(c)(2); see

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2: 17-cv-05261-VBF (KS):
Title

Date: July 24, 2017

Timothy Booten v. R.J. Rackley

also Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).” (Doc. No. 56 in case no. 2:14-cv-7707
VBF-KS.)
The instant Petition, filed on July 17, 2017, contains five claims: (1) Violation of
Fourteenth Amendment right under Cal. Penal Code § 1473 (B)(3)(A) “is a newly enact of law
for considering the disqualification of Proposition 64 by using the stigma of gang as a
disqualifying factor, without proof of violence or a disqualification factor;” (2) “the phrase any
serious and violent felony offense punishable in California by life imprisonment or death (penal
Code section 667 (E)(2)(C)(IV)(VIII) refers only to offense [sic] that are listed as serious
felonies under section 1192.7 subd. (C) and or violent felonies under section 667.5 subd. (C) and
for which the usual prescribed punishment is a life sentence such as kidnapping in violation of
penal code section 209;” (3) “substantial due process procedural right as cited under the
Fourteenth Amendment is required conduct credit must be awarded from the time of conviction
base [sic] on retroactivity constitutional law provision;” (4) “under the Fourteenth Amendment
substantial due process procedural requires Petitioner request remand under Penal Code section
1385 for judges exercise discretion to the disqualification reviewing under Proposition 64;” and
(5) “as cited under the Fourteenth Amendment in it was abuse of discretion to makes penal code
section 186.22 a disqualification factor for suitability under proposition 64.” (Petition at 4, and
Attachment at 3, 8, 11, 13, 19 (errors in original).)
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts,
28 U.S.C. foll. § 2254 (“Habeas Rules”), requires the Court to dismiss a petition without
ordering a responsive pleading where “it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief.” The Court has identified a defect in the
Petition that suggests it must be dismissed.
The Instant Petition Appears to Be An Improper Second and Successive Filing.

The Petition, like the Prior Federal Action, concerns Petitioner’s 2010 conviction. State
habeas petitioners generally may file only one federal habeas petition challenging a particular
state conviction and/or sentence. See, e.g., 28 U.S.C. § 2244(b)(1) (courts must dismiss a claim
presented in a second or successive petition when that claim was presented in a prior petition)
and § 2244(b)(2) (with several exceptions not applicable here, courts must dismiss a claim
presented in a second or successive petition when that claim was not presented in a prior
petition). “A habeas petition is second or successive . . . if it raises claims that were or could
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2: 17-cv-05261-VBF (KS):
Title

Date: July 24, 2017

Timothy Booten v. R.J. Rackley

have been adjudicated on the merits” in an earlier Section 2254 petition. McNabb v. Yates, 576
F.3d 1028, 1029 (9th Cir. 2009); see also Gage v. Chappell, 793 F.3d 1159, 1165 (9th Cir. 2015)
(claims for which the factual predicate existed at the time of the first habeas petition qualify as
second or successive) (citations omitted).
Even when Section 2244(b) provides a basis for pursuing a second or successive Section
2254 habeas petition, state habeas petitioners seeking relief in this district court must first obtain
authorization from the Ninth Circuit before filing any such second or successive petition. 28
U.S.C. § 2244(b)(3). The Ninth Circuit “may authorize the filing of the second or successive
[petition] only if it presents a claim not previously raised that satisfies one of the two grounds
articulated in § 2242(b)(2).” Burton v. Stewart, 549 U.S. 147, 153 (2007).
In the Prior Federal Action, Petitioner sought Section 2254 relief based on the same state
conviction at issue here. As noted, this Court denied the petition in the Prior Federal Action and
dismissed the action with prejudice. The instant Petition appears to challenge the trial court’s
imposition of a 9 year prison term based on Penal Code section 186.22 (penalty for participation
in criminal street gang). (Pet., Attachment at 2.) Petitioner argues that the trial court erred when
it used [Penal code section 186.22] to disqualify timothy Booten from modification of sentence
without proven a criminal conduct of violent, violence committed against a person or
seriousness.” (Id. (errors in original).) The Petition contends that the trial court’s actions violated
his right to due process under the Fourteenth Amendment and that he is entitled to relief based
on “newly enacted” California Penal Code section 1473 (b)(3)(A), which, he argues, “prohibited
the exclusion of application by using illegal disqualification factors under PC § 186.22.” (Pet. at
6.) But on examination of Petitioner’s arguments in the Attachment submitted with the
Petitioner, it appears that Petitioner is, in essence, rearguing the sufficiency of the evidence
presented at the trial in support of the gang-enhancement.
Further, while Petitioner is correct that section 1473 (b)(3)(A) was amended effective
January 1, 2017, the amendment Petitioner cites provides for a change in the definition of “new
evidence,” to include evidence “discovered after trial, that would not have been discovered prior
to trial by the exercise of due diligence, and is admissible and not merely cumulative,
corroborative, collateral, or impeaching.” Cal. Penal C. § 1473 (amended effective Jan.1, 2017).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2: 17-cv-05261-VBF (KS):
Title

Date: July 24, 2017

Timothy Booten v. R.J. Rackley

It is unclear why this amendment to the California Penal Code provides a basis for new federal
habeas petition seeking modification of Petitioner’s original sentence. 1

Therefore, in order for this Court to consider a second or successive 28 U.S.C. § 2254
petition, the Ninth Circuit must first issue authorization to consider that petition. 28 U.S.C. §
2244(b)(3). Here, the Ninth Circuit’s dockets show that Petitioner has not filed any application
seeking leave to raise the claims contained in the Petition in a second or successive Section 2254
petition. Accordingly, the Petition is barred as second or successive within the meaning of
Section 2244(b). See McNabb, 576 F.3d at 1030 (holding “that dismissal of a section 2254
habeas petition for failure to comply with the statute of limitations renders subsequent petitions
second or successive for purposes of the AEDPA, 28 U.S.C. § 2244(b).”).
Therefore, Petitioner is ORDERED TO SHOW CAUSE within thirty days of this
Order why the Petition should not be dismissed as second or successive. See 28 U.S.C. §
2244(b)(2); see also Burton, 549 U.S. at 157 (district court lacks jurisdiction to consider the
merits of a second or successive petition absent prior authorization from the circuit court).
To discharge the Order to Show Cause, Petitioner must file, no later than thirty days
from this Order: (1) a First Amended Petition For Writ Of Habeas Corpus that explains why his
Petition is not second and successive, or (2) authorization from the Ninth Circuit to file a second
and successive petition.
1

To the extent that Petitioner contends that the November 2016 enactment of
California Proposition 64, the California Marijuna Legalization Initiative, applies retroactively
to require a modification of his 2010 sentence for possession of marijuana, that issue raises
strictly questions of state law and, therefore, is not cognizable as a federal habeas claim. See
Estelle v McGuire, 502 U.S. 62, 67 (1991) (“federal habeas corpus relief does not lie for errors
of state law”) (internal citations omitted). Moreoever, the California Court of Appeal has held
that persons sentenced for possession of marijuana for sale prior to the enactment of Proposition
64 are not automatically entitled to a reduction of punishment, but “retroactive application of the
lesser punishment [is] contingent on a court’s evaluation of the defendant’s dangerousness.” See
People v. Rascon, 10 Cal. App.5th 388, 390 (2017) (citing People v. Conley, 64 Cal.4th. 646,
653 (2016)).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2: 17-cv-05261-VBF (KS):
Title

Date: July 24, 2017

Timothy Booten v. R.J. Rackley

Petitioner’s failure to timely show cause for proceeding with this action will result in
the Court recommending dismissal pursuant to Rule 4 of the Habeas Rules, Local Rule 411, and Rule 41 of the Federal Rules of Civil Procedure.
If Petitioner no longer wishes to pursue this action, he may voluntarily dismiss it by filing
a signed document entitled “Notice Of Voluntary Dismissal” in accordance with Federal Rule of
Civil Procedure 41(a)(1).
:
Initials of Preparer

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rh

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