Thomas Floyd Brissette v. Debbie Asuncion

Filing 4

ORDER DISMISSING HABEAS CORPUS PETITION AND DENYING CERTIFICATE OF APPEALABILITY by Judge Jesus G. Bernal. (See document for further details.) (sbou)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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THOMAS FLOYD BRISSETTE, SR.,
Petitioner,

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v.
DEBBIE ASUNCION, WARDEN,

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Respondent.

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CASE NO. CV 17-7964-JGB (PJW)
ORDER DISMISSING HABEAS CORPUS
PETITION AND DENYING CERTIFICATE
OF APPEALABILITY

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Before the Court is a Petition for Writ of Habeas Corpus under 28

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U.S.C. § 2254, in which Petitioner raises two claims: (1) his 1985

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conviction in Los Angeles County Superior Court for second degree

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murder was the result of a guilty plea that Petitioner wanted to

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withdraw but was prevented from withdrawing; and (2) his recently-

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obtained rap sheet indicates that Petitioner has been held in custody

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under a parole violation since 2000, contrary to the terms of his plea

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agreement.

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reasons, the Petition is dismissed without prejudice.

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(Petition at 3-4 and attached pages.)

For the following

The Court has a duty to screen habeas corpus petitions before

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ordering service on a respondent.

See Mayle v. Felix, 545 U.S. 644,

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656 (2005).

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petition that a petitioner is not entitled to relief, the Court can

In doing so, if it plainly appears from the face of a

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dismiss the petition at the outset.

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§ 2254 Cases.

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See Rule 4, Rules Governing

Petitioner’s first claim, challenging his plea agreement, is

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barred as an unauthorized second or successive claim.

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2003, this court dismissed as untimely a petition filed by Petitioner

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challenging the propriety of his 1985 plea agreement.

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McGrath, CV 01-6682-GLT (PJW), January 17, 2003 Order Accepting Report

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and Recommendation of United States Magistrate Judge.)

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attempted to appeal that ruling, but his application for a certificate

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of appealability was denied.

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In January

(Brissette v.

Petitioner

June 20, 2003 Order.)

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(Brissette v. McGrath, CCA No. 03-55624,

A petition that is dismissed for untimeliness “presents a

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‘permanent and incurable’ bar to federal review of the underlying

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claims” and renders a subsequent petition second or successive.

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McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009).

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from the Ninth Circuit, Petitioner may not bring another petition

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challenging his 1985 conviction and sentence in this court.

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U.S.C. § 2244(b)(1),(3)(A).

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Absent an order

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As for Petitioner’s second claim, it appears to be unexhausted.

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As a matter of comity between state and federal courts, a federal

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court will generally not address the merits of a habeas corpus

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petition unless a petitioner has first exhausted his state remedies by

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presenting his claims to the highest court of the state.

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§ 2254(b); Rose v. Lundy, 455 U.S. 509, 522 (1982); see also Cooper v.

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Neven, 641 F.3d 322, 326 (9th Cir. 2011).

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petition in the California Court of Appeal, which was denied on June

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29, 2017 (Case No. B282983).

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court website, at appellatecases.courtinfo.ca.gov, reveals, however,

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Petitioner filed a habeas

A review of the California appellate

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that Petitioner has not filed a petition in the California Supreme

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Court since December 2010 (Case No. S189235), which means he has never

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presented the instant claim to the state supreme court.

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because Petitioner’s plea bargain claim is barred as second or

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successive, the Petition as a whole is unexhausted and subject to

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dismissal.

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2006) (“Once a district court determines that a habeas petition

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contains only unexhausted claims, it need not inquire further as to

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the petitioner’s intentions.

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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

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the denial of a constitutional right or that the court erred in its

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ruling, he is not entitled to a certificate of appealability.

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U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537

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U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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IT IS SO ORDERED

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DATED: November 21, 2017.

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JESUS G. BERNAL
UNITED STATES DISTRICT JUDGE

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Presented by:

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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