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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DAVID HAMILTON,

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Petitioner,

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v.
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PEOPLE OF THE STATE OF
CALIFORNIA, et al.,

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Respondents.

) Case No. CV 17-08154-DSF (AS)
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) ORDER OF DISMISSAL
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I.

BACKGROUND

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On

November

8,

2017,

David

Hamilton

(“Petitioner”),

a

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California state prisoner proceeding pro se, filed a Motion to
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Vacate, Set Aside or Correct Sentence by a Person in Federal
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Custody pursuant to 28 U.S.C. §§ 2241, 2253(c)(1)(B) (Docket
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Entry No. 1), which the Court construes as a Petition for Writ of
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Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C.
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§ 2254 (“Petition”). The Petition is accompanied by a supporting

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Memorandum

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Petitioner’s Affidavit. (Docket Entry Nos. 2-3).

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challenges his 2010 convictions for mayhem and assault by means

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likely to produce great bodily injury, as well as his 46-years-

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to-life sentence, in Los Angeles County Superior Court (Case No.

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BA339752).1 The Petition alleges the following ground for federal

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habeas relief: (1) Petitioner received ineffective assistance of

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counsel based on his trial counsel’s failure to investigate and

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present mitigating evidence at trial and at sentencing, make

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timely objections to false testimony and false evidence, and

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allow Petitioner to testify; (2) Petitioner received ineffective

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assistance of counsel based on his appellate counsel’s deviation

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from claims; (3) The prosecutor failed to disclose exculpatory

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evidence, thereby violating Petitioner’s rights to present a

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meaningful and complete defense and to a fair and impartial

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trial; (4) Two prosecution witnesses gave false testimony, in

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violation of Petitioner’s right to due process; (5) “There was a

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systematic exclusion of African American jurors in the jury

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selection process.”; (6) Petitioner is actually innocent; and (7)

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Petitioner’s

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constituted

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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;

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The Court takes judicial notice of the pleadings in
David Hamilton v. William Knipp, Warden, Case No. CV 14-08537-DSF
(RZ).
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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
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On November 4, 2014, Petitioner filed a Petition for Writ of

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Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C.

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§ 2254, in which he challenged the same 2010 convictions and

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sentence (“prior habeas action”).

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Knipp, Case No. CV 14-08537-DSF (DZ)(Docket Entry No. 1).

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June 15, 2015, the Court issued an Order and Judgment denying

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that habeas petition and dismissing the action with prejudice

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(based on its untimeliness), in accordance with the findings,

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conclusions and recommendations of the assigned Magistrate Judge.

See David Hamilton v. William
On

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(Id.; Docket Entry Nos. 28-29.)

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denied Petitioner a certificate of appealability. (Id.; Docket

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Entry No. 30.)

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Appeals

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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.)

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II.

DISCUSSION

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The Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”), enacted on April 24, 1996, provides in pertinent part:

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(a)

No

circuit

or

district

judge

shall

be

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required to entertain an application for a writ of

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habeas corpus to inquire into the detention of a

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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.”).
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person pursuant to a judgment of a court of the

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United States if it appears that the legality of such

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detention has been determined by a judge or court of

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the United States on a prior application for a writ

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of habeas corpus, except as provided in §2255.

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(b)(1)

A

claim

presented

in

a

second

or

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successive habeas corpus application under section

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2254 that was presented in a prior application shall

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be dismissed.

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(2) A claim presented in a second or successive

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habeas corpus application under section 2254 that was

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not

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dismissed unless--

presented

in

a

prior

application

shall

be

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(A) the applicant shows that the claim relies on

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a new rule of constitutional law, made retroactive to

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cases on collateral review by the Supreme Court, that

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was previously unavailable; or

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(B)(i) the factual predicate for the claim could

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not

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exercise of due diligence; and

have

been

discovered

previously

through

the

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(ii) the facts underlying the claim, if proven

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and viewed in light of the evidence as a whole, would

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be sufficient to establish by clear and convincing

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evidence

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reasonable fact finder would have found the applicant

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guilty of the underlying offense.

that,

but

for

constitutional

error,

no

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(3)(A) Before a second or successive application

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permitted by this section is filed in the district
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court, the applicant shall move in the appropriate

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court

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district court to consider the application.

of

appeals

for

an

order

authorizing

the

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(B) A motion in the court of appeals for an

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order authorizing the district court to consider a

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second or successive application shall be determined

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by a three-judge panel of the court of appeals.

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(C) The

court

of

appeals

may

authorize

the

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filing of a second or successive application only if

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it determines that the application makes a prima

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facie showing that the application satisfies the

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requirements of this subsection.

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(D) The court of appeals shall grant or deny the

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authorization

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application not later than 30 days after the filing

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of the motion.

to

file

a

second

or

successive

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(E) The grant or denial of an authorization by

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a court of appeals to file a second or successive

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application shall not be appealable and shall not be

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the subject of a Petition for Rehearing or for a Writ

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of Certiorari.

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(4) A district court shall dismiss any claim

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presented in a second or successive application that

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the court of appeals has authorized to be filed

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unless the applicant shows that the claim satisfies

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the requirements of this section.

28 U.S.C. § 2244.

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28 U.S.C. § 2244(b)(3) “creates a ‘gatekeeping’ mechanism for
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the consideration of second or successive applications in district

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court.

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appeals a motion for leave to file a second or successive habeas

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application in the district court.

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Turpin, 518 U.S. 651, 657(1996).

The prospective applicant must file in the court of

§ 2244(b)(3)(A).”

Felker v.

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The

instant

Petition

and

the

prior

habeas

action

both

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challenge Petitioner’s custody pursuant to the same 2010 judgment

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entered by the Los Angeles County Superior Court.

Accordingly,

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the instant Petition, filed on November 8, 2017, well after the

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effective date of the AEDPA, is a second or successive habeas

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petition for purposes of 28 U.S.C. § 2244.

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was required to obtain authorization from the Court of Appeals

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before filing the present Petition. See 28 U.S.C. §2244(b)(3)(A).

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No such authorization has been obtained.

Therefore, Petitioner

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Moreover, the claims asserted in the instant Petition do not

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appear to fall within the exceptions to the bar on second or

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successive petitions because the asserted claims are not based on

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newly discovered facts or a “a new rule of constitutional law,

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made retroactive to cases on collateral review by the Supreme

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Court, that was previously unavailable.”

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656, 662 (2001).

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United States Court of Appeals on a petitioner’s motion for an

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order authorizing the district court to consider his second or

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successive petition. 28 U.S.C. § 2244(b); see Burton v. Stewart,

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549 U.S. 147, 157 (2007) (where the petitioner did not receive

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authorization from the Court of Appeals before filing second or

Tyler v. Cain, 533 U.S.

However, this determination must be made by the

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successive petition, “the District Court was without jurisdiction

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to entertain [the petition]”); Barapind v. Reno, 225 F.3d 1100,

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1111 (9th Cir. 2000) (“[T]he prior-appellate-review mechanism set

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forth in § 2244(b) requires the permission of the court of appeals

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before ‘a second or successive habeas application under § 2254’

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may

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authorization from the Ninth Circuit, this Court cannot entertain

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the present Petition.

be

commenced.”).

Because

Petitioner

has

not

obtained

See Burton v. Stewart, supra.

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To the extent that Petitioner is attempting to allege a claim

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of actual innocence in an attempt to bypass the successive

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petition hurdle, see McQuiggin v. Perkins, 133 S.Ct. 1924, 1928

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(2013) (“We hold that actual innocence, if proved, serves as a

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gateway through which a petitioner may pass whether the impediment

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is a procedural bar, as it was in Schlup and House, or, as in this

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case, expiration of the statute of limitations), Petitioner has

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failed to show the actual innocence exception applies in his case.

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Under

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limitations, a petitioner must show that “‘in light of the new

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evidence, no juror, acting reasonably, would have voted to find

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him guilty beyond a reasonable doubt.’” Id. (quoting Schlup v.

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Delo, 513 U.S. 298, 329 (1995)); see House v. Bell, 547 U.S. 518,

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538 (2006) (“A petitioner’s burden at the gateway stage is to

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demonstrate that more likely than not, in light of the new

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evidence, no reasonable juror would find him guilty beyond a

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reasonable doubt–or, to remove the double negative, that more

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likely

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doubt.”).

the

than

actual

not

innocence

any

exception

reasonable

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juror

to

would

the

have

statute

of

reasonable

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Here, Petitioner does not allege why he is actually innocent.

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See Bousley v. United States, 523 U.S. 614, 623 (1998) (“‘Actual

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innocence’

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insufficiency.”); Morales v. Ornoski, 439 F.3d 529, 533-34 (9th

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Cir. 2006).

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a showing of actual innocence, supported by new reliable evidence.

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See Schlup v. Delo, 513 U.S. at 324 (“To be credible, [a claim of

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actual innocence] requires petitioner to support his allegations

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of constitutional error with new reliable evidence--whether it be

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exculpatory scientific evidence, trustworthy eyewitness accounts,

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or critical physical evidence--that was not presented at trial.”).

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Petitioner

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involving a compelling claim of actual innocence.” House v. Bell,

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547 U.S. at 521; see Schlup v. Delo, supra (“[E]xperience has

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taught us that a substantial claim that constitutional error has

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caused the conviction of an innocent person is extremely rare.”);

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McQuiggin v. Perkins, supra (“We caution, however, that tenable

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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[]

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Consequently, it does not appear that the actual innocence

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exception to filing a successive petition would apply, although

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this is a determination that must be made by the Ninth Circuit

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Court of Appeals.

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III.

ORDER

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IT

IS

ORDERED

that

the

Petition
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be

dismissed

without

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prejudice.

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11/27/17
DATED:

________________
____________________________
DALE S. FISCHER
UNITED STATES DISTRICT JUDGE

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