Thomas Floyd Brissette v. Debbie Asuncion

Filing 4


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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 THOMAS FLOYD BRISSETTE, SR., Petitioner, 11 12 13 v. DEBBIE ASUNCION, WARDEN, 14 Respondent. ) ) ) ) ) ) ) ) ) ) CASE NO. CV 17-7964-JGB (PJW) ORDER DISMISSING HABEAS CORPUS PETITION AND DENYING CERTIFICATE OF APPEALABILITY 15 16 Before the Court is a Petition for Writ of Habeas Corpus under 28 17 U.S.C. § 2254, in which Petitioner raises two claims: (1) his 1985 18 conviction in Los Angeles County Superior Court for second degree 19 murder was the result of a guilty plea that Petitioner wanted to 20 withdraw but was prevented from withdrawing; and (2) his recently- 21 obtained rap sheet indicates that Petitioner has been held in custody 22 under a parole violation since 2000, contrary to the terms of his plea 23 agreement. 24 reasons, the Petition is dismissed without prejudice. 25 (Petition at 3-4 and attached pages.) For the following The Court has a duty to screen habeas corpus petitions before 26 ordering service on a respondent. See Mayle v. Felix, 545 U.S. 644, 27 656 (2005). 28 petition that a petitioner is not entitled to relief, the Court can In doing so, if it plainly appears from the face of a 1 dismiss the petition at the outset. 2 § 2254 Cases. 3 See Rule 4, Rules Governing Petitioner’s first claim, challenging his plea agreement, is 4 barred as an unauthorized second or successive claim. 5 2003, this court dismissed as untimely a petition filed by Petitioner 6 challenging the propriety of his 1985 plea agreement. 7 McGrath, CV 01-6682-GLT (PJW), January 17, 2003 Order Accepting Report 8 and Recommendation of United States Magistrate Judge.) 9 attempted to appeal that ruling, but his application for a certificate 10 of appealability was denied. 11 In January (Brissette v. Petitioner June 20, 2003 Order.) 12 (Brissette v. McGrath, CCA No. 03-55624, A petition that is dismissed for untimeliness “presents a 13 ‘permanent and incurable’ bar to federal review of the underlying 14 claims” and renders a subsequent petition second or successive. 15 McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). 16 from the Ninth Circuit, Petitioner may not bring another petition 17 challenging his 1985 conviction and sentence in this court. 18 U.S.C. § 2244(b)(1),(3)(A). 19 Absent an order See 28 As for Petitioner’s second claim, it appears to be unexhausted. 20 As a matter of comity between state and federal courts, a federal 21 court will generally not address the merits of a habeas corpus 22 petition unless a petitioner has first exhausted his state remedies by 23 presenting his claims to the highest court of the state. 24 § 2254(b); Rose v. Lundy, 455 U.S. 509, 522 (1982); see also Cooper v. 25 Neven, 641 F.3d 322, 326 (9th Cir. 2011). 26 petition in the California Court of Appeal, which was denied on June 27 29, 2017 (Case No. B282983). 28 court website, at, reveals, however, 28 U.S.C. Petitioner filed a habeas A review of the California appellate 2 1 that Petitioner has not filed a petition in the California Supreme 2 Court since December 2010 (Case No. S189235), which means he has never 3 presented the instant claim to the state supreme court. 4 because Petitioner’s plea bargain claim is barred as second or 5 successive, the Petition as a whole is unexhausted and subject to 6 dismissal. 7 2006) (“Once a district court determines that a habeas petition 8 contains only unexhausted claims, it need not inquire further as to 9 the petitioner’s intentions. 10 11 Furthermore, See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. Instead, it may simply dismiss the habeas petition for failure to exhaust.”). Finally, because Petitioner has not made a substantial showing of 12 the denial of a constitutional right or that the court erred in its 13 ruling, he is not entitled to a certificate of appealability. 14 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 15 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000). 16 IT IS SO ORDERED 17 DATED: November 21, 2017. 18 19 JESUS G. BERNAL UNITED STATES DISTRICT JUDGE 20 21 22 Presented by: 23 24 25 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 26 27 28 3 See 28

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