Kevin Daniel Driscoll v. Josie Gastelo

Filing 4

OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION) by Judge David O. Carter. IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of jurisdiction. (See Order for details.) (mp)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 KEVIN DANIEL DRISCOLL, Petitioner, v. JOSIE GASTELO, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 17-7756-DOC (AGR) OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION) On October 24, 2017, Petitioner filed a Petition for Writ of Habeas Corpus 19 (“Petition”) pursuant to 28 U.S.C. § 2254. He challenges a 1999 Los Angeles 20 County Superior Court conviction and sentence for second degree murder with a 21 gun enhancement. (Petition at 2.) Because he previously challenged the same 22 state court judgment in a federal habeas action that was dismissed with prejudice 23 and because he lacks Ninth Circuit authorization to file a successive petition, the 24 Court does not have jurisdiction over the successive petition. 25 Petitioner also filed, in connection with his current Petition, a motion 26 pursuant to Fed. R. Civ. P. 60(b) for relief from judgment in his prior habeas 27 action, Driscoll v. Yarborough, No. CV 02-3013-DOC (AN) (“Driscoll I”). The 28 Clerk is directed to file the motion in Driscoll I. 1 I. 2 PROCEDURAL BACKGROUND 3 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the records 4 in Petitioner’s prior federal habeas corpus action in the Central District of 5 California. 6 In 1999, a Los Angeles County Superior Court jury convicted Petitioner of 7 second degree murder. The jury also found true an enhancement allegation that, 8 in committing the murder, Petitioner personally and intentionally discharged a 9 firearm, causing great bodily injury and death. He was sentenced to prison for an 10 aggregate term of 40 years to life. (Petition at 2; see Dkt. Nos. 66, 73 in Driscoll 11 I.) Petitioner filed unsuccessful appeals and habeas actions in state court. 12 On April 11, 2002, Petitioner filed a habeas petition in this Court. On 13 December 29, 2005, the Court entered Judgment dismissing Driscoll I with 14 prejudice and, on February 15, 2006, the Court denied a certificate of 15 appealability. (Driscoll I, Dkt. Nos. 73, 74, 77.) The Ninth Circuit denied a 16 certificate of appealability on August 30, 2007 in its case number 06-55273. (Dkt. 17 No. 82.) The United States Supreme Court denied certiorari on March 31, 2008 18 in its case number 07-8996. 19 On March 23, 2017, Petitioner filed an application in the Ninth Circuit for 20 authorization to file a second or successive habeas petition in that court’s case 21 number 17-70835. According to the public docket, that application remains 22 pending. 23 The Petition for Writ of Habeas Corpus filed on October 24, 2017 in this 24 Court contains two grounds for relief: (1) the prosecution failed to prove each 25 element of the firearm enhancement beyond a reasonable doubt and, therefore, 26 he is actually innocent of the enhancement in Cal. Penal Code § 12022.53; and 27 (2) the same enhancement statute is unconstitutionally vague. (Petition at 5.) 28 2 1 Petitioner contends his actual innocence exempts him from the one-year statute 2 of limitations under 28 U.S.C. § 2244(b)(2)(B)(ii). (Id. at 5.) 3 Petitioner also filed a motion pursuant to Fed. R. Civ. P. 60(b) for relief 4 from judgment in Driscoll I. The Rule 60(b) motion raises new grounds for relief 5 that were not contained in the Second Amended Petition in Driscoll I. 6 Specifically, Petitioner argues, as he does in the successive petition, that the gun 7 enhancement in Cal. Penal Code § 12022.53(d) is inapplicable to defendants 8 who have not furthered or promoted a criminal street gang pursuant to Cal. Penal 9 Code § 186.22(b) and, therefore, he is actually innocent of the gun 10 enhancement.1 11 I. 12 DISCUSSION 13 The Petition was filed after enactment of the Antiterrorism and Effective 14 Death Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA 15 in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997). 16 The AEDPA provides, in pertinent part: “Before a second or successive 17 application permitted by this section is filed in the district court, the applicant shall 18 move in the appropriate court of appeals for an order authorizing the district court 19 to consider the application.” 28 U.S.C. § 2244(b)(3)(A). A district court does not 20 have jurisdiction to consider a “second or successive” petition absent 21 authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152 (2007); 22 Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (“When the AEDPA is in 23 play, the district court may not, in the absence of proper authorization from the 24 25 26 27 28 1 Section 12022.53(d) mandates a consecutive 25-year term of imprisonment for any person who, in the commission of enumerated felonies including murder, “personally and intentionally discharges a firearm and proximately causes great bodily injury or death.” Section 12022.53(d), unlike § 12022.53(e), does not require a violation of § 186.22(b). See Ozoa v. Sutton, 2017 U.S. Dist. LEXIS 98461, *5 (S.D. Cal. June 23, 2017). 3 1 court of appeals, consider a second or successive habeas application.”) (citation 2 and quotation marks omitted). 3 Petitioner’s successive petition attacks the same state court judgment. 4 Magwood v. Patterson, 561 U.S. 320, 331 (2010). Petitioner’s reference to his 5 actual innocence does not alter the analysis. See Williams v. Thaler, 602 F.3d 6 291, 304-05 (5th Cir. 2010) (because petitioner failed to obtain Court of Appeals’ 7 authorization for leave to file successive petition, “district court did not have 8 jurisdiction to consider [petitioner]’s claim of actual innocence”). 9 Contrary to Petitioner’s argument, Fed. R. Civ. P. 60(b) does not authorize 10 the filing of a successive petition. “Rule 60(b), like the rest of the Rules of Civil 11 Procedure, applies in habeas corpus proceedings under 28 U.S.C. § 2254 only 12 ‘to the extent that [it is] not inconsistent with’ applicable federal statutory 13 provisions and rules.” Gonzalez v. Crosby, 545 U.S. 524, 529 (2005) (footnote 14 omitted). As discussed above, one of the AEDPA-amended statutes requires 15 that, “before the district court may accept a successive petition for filing, the court 16 of appeals must determine that it presents a claim not previously raised that is 17 sufficient to meet § 2244(b)(2)’s new-rule or actual-innocence provisions.” Id. at 18 530. A Rule 60(b) motion, like petitioner’s, that seeks adjudication of a claim of 19 constitutional error “is, if not in substance a ‘habeas corpus application,’ at least 20 similar enough that failing to subject it to the same requirements would be 21 ‘inconsistent with’ the statute. Using Rule 60(b) to present new claims for relief 22 from a state court’s judgment of conviction – even claims couched in the 23 language of a true Rule 60(b) motion – circumvents AEDPA’s requirement that a 24 new claim be dismissed unless it relies on either a new rule of constitutional law 25 or newly discovered facts.” Id. at 531. Such a use of Rule 60(b) “would 26 impermissibly circumvent the requirement that a successive habeas petition be 27 precertified by the court of appeals as falling within an exception to the 28 successive-petition bar.” Id. at 532. Petitioner’s Rule 60(b) motion, which seeks 4 1 to add new grounds for relief, is impermissible. Id.; see also Doe v. Ayers, 782 2 F.3d 425, 430 (9th Cir. 2015); Jones v. Ryan, 733 F.3d 825, 838 (9th Cir. 2013) 3 (finding Rule 60(b) motion to be disguised habeas petition). 4 Rule 4 of the Rules Governing Section 2254 Cases in the United States 5 Courts provides that “[i]f it plainly appears from the face of the petition and any 6 attached exhibits that the petitioner is not entitled to relief in the district court, the 7 judge must dismiss the petition and direct the clerk to notify the petitioner.” Here, 8 summary dismissal is warranted. 9 II. 10 ORDER 11 12 IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of jurisdiction. 13 14 15 November 9, 2017 DATED: ______________________ DAVID O. CARTER United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?