David Hamilton v. People of the State of California et al

Filing 5

ORDER OF DISMISSAL by Judge Dale S. Fischer. IT IS ORDERED that the Petition be dismissed without prejudice. (See Order for complete details) (afe)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 13 DAVID HAMILTON, 14 Petitioner, 15 v. 16 17 PEOPLE OF THE STATE OF CALIFORNIA, et al., 18 Respondents. ) Case No. CV 17-08154-DSF (AS) ) ) ORDER OF DISMISSAL ) ) ) ) ) ) ) ) ) 19 20 I. BACKGROUND 21 22 On November 8, 2017, David Hamilton (“Petitioner”), a 23 California state prisoner proceeding pro se, filed a Motion to 24 Vacate, Set Aside or Correct Sentence by a Person in Federal 25 Custody pursuant to 28 U.S.C. §§ 2241, 2253(c)(1)(B) (Docket 26 Entry No. 1), which the Court construes as a Petition for Writ of 27 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 28 § 2254 (“Petition”). The Petition is accompanied by a supporting 1 Memorandum 2 Petitioner’s Affidavit. (Docket Entry Nos. 2-3). 3 challenges his 2010 convictions for mayhem and assault by means 4 likely to produce great bodily injury, as well as his 46-years- 5 to-life sentence, in Los Angeles County Superior Court (Case No. 6 BA339752).1 The Petition alleges the following ground for federal 7 habeas relief: (1) Petitioner received ineffective assistance of 8 counsel based on his trial counsel’s failure to investigate and 9 present mitigating evidence at trial and at sentencing, make 10 timely objections to false testimony and false evidence, and 11 allow Petitioner to testify; (2) Petitioner received ineffective 12 assistance of counsel based on his appellate counsel’s deviation 13 from claims; (3) The prosecutor failed to disclose exculpatory 14 evidence, thereby violating Petitioner’s rights to present a 15 meaningful and complete defense and to a fair and impartial 16 trial; (4) Two prosecution witnesses gave false testimony, in 17 violation of Petitioner’s right to due process; (5) “There was a 18 systematic exclusion of African American jurors in the jury 19 selection process.”; (6) Petitioner is actually innocent; and (7) 20 Petitioner’s 21 constituted 22 Memorandum at 1-7; Petitioner’s Affidavit at 1-6.)2 of Points sentence cruel and and Authorities under (“Memorandum”) California’s unusual punishment. Three and by Petitioner Strikes (Petition at Law 5; 23 24 25 26 27 28 1 The Court takes judicial notice of the pleadings in David Hamilton v. William Knipp, Warden, Case No. CV 14-08537-DSF (RZ). 2 To the extent that Petitioner is attempting to seek relief from Judgment in Case No. CV 14-08537-DSF (RZ) under Fed.R.Civ.P 60(b)(6), Petitioner has failed to show extraordinary circumstances justifying the reopening of a final judgment. See Gonzalez v. Crosby, 545 U.S. 524, 536 (2005); LaFarge Conseils et 2 1 On November 4, 2014, Petitioner filed a Petition for Writ of 2 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 3 § 2254, in which he challenged the same 2010 convictions and 4 sentence (“prior habeas action”). 5 Knipp, Case No. CV 14-08537-DSF (DZ)(Docket Entry No. 1). 6 June 15, 2015, the Court issued an Order and Judgment denying 7 that habeas petition and dismissing the action with prejudice 8 (based on its untimeliness), in accordance with the findings, 9 conclusions and recommendations of the assigned Magistrate Judge. See David Hamilton v. William On 10 (Id.; Docket Entry Nos. 28-29.) 11 denied Petitioner a certificate of appealability. (Id.; Docket 12 Entry No. 30.) 13 Appeals 14 appealability. On the same date, the Court On February 16, 2016, the Ninth Circuit Court of denied Petitioner’s request for a certificate of (Id.; Docket Entry No. 37.) 15 16 II. DISCUSSION 17 18 The Antiterrorism and Effective Death Penalty Act of 1996 19 (“AEDPA”), enacted on April 24, 1996, provides in pertinent part: 20 21 (a) No circuit or district judge shall be 22 required to entertain an application for a writ of 23 habeas corpus to inquire into the detention of a 24 25 26 27 28 Etudes, S.A. v. Kaiser Cement & Gypsum Corp., 791 F.2d 1334, 1338 (9th Cir. 1986) (citations omitted); see also Lehman v. United States, 154 F.3d 1010, 1017 (9th Cir. 1998) (“To receive Rule 60(b)(6) relief, a moving party must show both injury and that circumstances beyond [his or her] control prevented timely action to protect [his or her] interests.”). 3 1 person pursuant to a judgment of a court of the 2 United States if it appears that the legality of such 3 detention has been determined by a judge or court of 4 the United States on a prior application for a writ 5 of habeas corpus, except as provided in §2255. 6 (b)(1) A claim presented in a second or 7 successive habeas corpus application under section 8 2254 that was presented in a prior application shall 9 be dismissed. 10 (2) A claim presented in a second or successive 11 habeas corpus application under section 2254 that was 12 not 13 dismissed unless-- presented in a prior application shall be 14 (A) the applicant shows that the claim relies on 15 a new rule of constitutional law, made retroactive to 16 cases on collateral review by the Supreme Court, that 17 was previously unavailable; or 18 (B)(i) the factual predicate for the claim could 19 not 20 exercise of due diligence; and have been discovered previously through the 21 (ii) the facts underlying the claim, if proven 22 and viewed in light of the evidence as a whole, would 23 be sufficient to establish by clear and convincing 24 evidence 25 reasonable fact finder would have found the applicant 26 guilty of the underlying offense. that, but for constitutional error, no 27 (3)(A) Before a second or successive application 28 permitted by this section is filed in the district 4 1 court, the applicant shall move in the appropriate 2 court 3 district court to consider the application. of appeals for an order authorizing the 4 (B) A motion in the court of appeals for an 5 order authorizing the district court to consider a 6 second or successive application shall be determined 7 by a three-judge panel of the court of appeals. 8 (C) The court of appeals may authorize the 9 filing of a second or successive application only if 10 it determines that the application makes a prima 11 facie showing that the application satisfies the 12 requirements of this subsection. 13 (D) The court of appeals shall grant or deny the 14 authorization 15 application not later than 30 days after the filing 16 of the motion. to file a second or successive 17 (E) The grant or denial of an authorization by 18 a court of appeals to file a second or successive 19 application shall not be appealable and shall not be 20 the subject of a Petition for Rehearing or for a Writ 21 of Certiorari. 22 (4) A district court shall dismiss any claim 23 presented in a second or successive application that 24 the court of appeals has authorized to be filed 25 unless the applicant shows that the claim satisfies 26 the requirements of this section. 28 U.S.C. § 2244. 27 28 28 U.S.C. § 2244(b)(3) “creates a ‘gatekeeping’ mechanism for 5 1 the consideration of second or successive applications in district 2 court. 3 appeals a motion for leave to file a second or successive habeas 4 application in the district court. 5 Turpin, 518 U.S. 651, 657(1996). The prospective applicant must file in the court of § 2244(b)(3)(A).” Felker v. 6 7 The instant Petition and the prior habeas action both 8 challenge Petitioner’s custody pursuant to the same 2010 judgment 9 entered by the Los Angeles County Superior Court. Accordingly, 10 the instant Petition, filed on November 8, 2017, well after the 11 effective date of the AEDPA, is a second or successive habeas 12 petition for purposes of 28 U.S.C. § 2244. 13 was required to obtain authorization from the Court of Appeals 14 before filing the present Petition. See 28 U.S.C. §2244(b)(3)(A). 15 No such authorization has been obtained. Therefore, Petitioner 16 17 Moreover, the claims asserted in the instant Petition do not 18 appear to fall within the exceptions to the bar on second or 19 successive petitions because the asserted claims are not based on 20 newly discovered facts or a “a new rule of constitutional law, 21 made retroactive to cases on collateral review by the Supreme 22 Court, that was previously unavailable.” 23 656, 662 (2001). 24 United States Court of Appeals on a petitioner’s motion for an 25 order authorizing the district court to consider his second or 26 successive petition. 28 U.S.C. § 2244(b); see Burton v. Stewart, 27 549 U.S. 147, 157 (2007) (where the petitioner did not receive 28 authorization from the Court of Appeals before filing second or Tyler v. Cain, 533 U.S. However, this determination must be made by the 6 1 successive petition, “the District Court was without jurisdiction 2 to entertain [the petition]”); Barapind v. Reno, 225 F.3d 1100, 3 1111 (9th Cir. 2000) (“[T]he prior-appellate-review mechanism set 4 forth in § 2244(b) requires the permission of the court of appeals 5 before ‘a second or successive habeas application under § 2254’ 6 may 7 authorization from the Ninth Circuit, this Court cannot entertain 8 the present Petition. be commenced.”). Because Petitioner has not obtained See Burton v. Stewart, supra. 9 10 To the extent that Petitioner is attempting to allege a claim 11 of actual innocence in an attempt to bypass the successive 12 petition hurdle, see McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 13 (2013) (“We hold that actual innocence, if proved, serves as a 14 gateway through which a petitioner may pass whether the impediment 15 is a procedural bar, as it was in Schlup and House, or, as in this 16 case, expiration of the statute of limitations), Petitioner has 17 failed to show the actual innocence exception applies in his case. 18 Under 19 limitations, a petitioner must show that “‘in light of the new 20 evidence, no juror, acting reasonably, would have voted to find 21 him guilty beyond a reasonable doubt.’” Id. (quoting Schlup v. 22 Delo, 513 U.S. 298, 329 (1995)); see House v. Bell, 547 U.S. 518, 23 538 (2006) (“A petitioner’s burden at the gateway stage is to 24 demonstrate that more likely than not, in light of the new 25 evidence, no reasonable juror would find him guilty beyond a 26 reasonable doubt–or, to remove the double negative, that more 27 likely 28 doubt.”). the than actual not innocence any exception reasonable 7 juror to would the have statute of reasonable 1 Here, Petitioner does not allege why he is actually innocent. 2 See Bousley v. United States, 523 U.S. 614, 623 (1998) (“‘Actual 3 innocence’ 4 insufficiency.”); Morales v. Ornoski, 439 F.3d 529, 533-34 (9th 5 Cir. 2006). 6 a showing of actual innocence, supported by new reliable evidence. 7 See Schlup v. Delo, 513 U.S. at 324 (“To be credible, [a claim of 8 actual innocence] requires petitioner to support his allegations 9 of constitutional error with new reliable evidence--whether it be 10 exculpatory scientific evidence, trustworthy eyewitness accounts, 11 or critical physical evidence--that was not presented at trial.”). 12 Petitioner 13 involving a compelling claim of actual innocence.” House v. Bell, 14 547 U.S. at 521; see Schlup v. Delo, supra (“[E]xperience has 15 taught us that a substantial claim that constitutional error has 16 caused the conviction of an innocent person is extremely rare.”); 17 McQuiggin v. Perkins, supra (“We caution, however, that tenable 18 actual-innocence gateway pleas are rare”). means factual innocence, not mere legal Moreover, Petitioner has not even purported to make simply has not presented an “exceptional case[] 19 20 Consequently, it does not appear that the actual innocence 21 exception to filing a successive petition would apply, although 22 this is a determination that must be made by the Ninth Circuit 23 Court of Appeals. 24 25 26 III. ORDER 27 28 IT IS ORDERED that the Petition 8 be dismissed without 1 prejudice. 2 3 4 5 6 11/27/17 DATED: ________________ ____________________________ DALE S. FISCHER UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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