Calvin Leonard Sharp, Jr. v. Stuart Sherman, et al
Filing
18
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION; REFERRING THE PETITION TO THE U.S. COURT OF APPEALS PURSUANT TO NINTH CIRCUIT RULE 22-3(A); DENYING A CERTIFICATE OF APPEALABILITY by Judge George H. Wu, re Petition for Writ of Habeas Corpus (2254) 9 . (See order for details). Case Terminated. Made JS-6. (Attachments: # 1 Petition Part 1, # 2 Petition Part 2, # 3 Petition Part 3, # 4 Envelope to Petition, # 5 Appeal Form) (hr)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
CENTRAL DISTRICT OF CALIFORNIA
9
10
CALVIN LEONARD SHARP,
11
Petitioner,
12
13
v.
STUART SHERMAN, el al,
14
Respondent.
15
)
)
)
)
)
)
)
)
)
)
No. CV 18-2235-GW(FFM)
ORDER SUMMARILY DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS FOR LACK OF SUBJECT
MATTER JURISDICTION;
REFERRING THE PETITION TO THE
U.S. COURT OF APPEALS PURSUANT
TO NINTH CIRCUIT RULE 22-3(A);
DENYING A CERTIFICATE OF
APPEALABILITY
16
17
DISMISSAL OF HABEAS PETITION WITHOUT PREJUDICE
18
On or about January 6, 2018, petitioner Calvin Leonard Sharp (“Petitioner”)
19
constructively filed a Petition for Writ of Habeas Corpus by a Person in State
20
Custody (“Petition”).1 Petitioner challenges a conviction and sentence imposed by
21
the California Superior Court for the County of Ventura in 2012 (Ventura
22
Superior Court Case No. 2008014330).
23
24
1
A pro se prisoner’s relevant filings may be construed as filed on the date they
were submitted to prison authorities for mailing, under the prison “mailbox rule” of
26 Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379 (1988). In this case, although the
27 Petition was filed by the Court on January 12, 2018, a proof of service attached to
the Petition is dated January 6, 2018. Therefore, the Court will assume that the
28 Petition was constructively filed no later than January 6, 2018.
25
1
The Court takes judicial notice of its files with respect to a prior habeas
2
petition (the “Prior Petition”) Petitioner filed in this Court on April 12, 2016,
3
Case No. CV 16-2504 GW (AJW). The Court notes that the Prior Petition was
4
directed to the same conviction and/or sentence sustained in Ventura County
5
Superior Court in 2012. On November 15, 2017, Judgment was entered in Case
6
No. CV 16-2504 GW (AJW) dismissing the Prior Petition as untimely.
7
The Petition now pending is governed by the provisions of the
8
Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132, 110 Stat.
9
1214) (“the Act”) which became effective April 24, 1996. Section 106 of the Act
10
amended 28 U.S.C. § 2244(b) to read, in pertinent part, as follows:
11
(1) A claim presented in a second or successive habeas corpus
12
application under section 2254 that was presented in a prior
13
application shall be dismissed.
14
(2) A claim presented in a second or successive habeas corpus
15
application under section 2254 that was not presented in a prior
16
application shall be dismissed unless --
17
(A) the applicant shows that the claim relies on a new
18
rule of constitutional law, made retroactive to cases on
19
collateral review by the Supreme Court, that was
20
previously unavailable; or
21
(B)(i) the factual predicate for the claim could not have
22
been discovered previously through the exercise of due
23
diligence; and
24
(ii) the facts underlying the claim, if proven and
25
viewed in light of the evidence as a whole, would be
26
sufficient to establish by clear and convincing evidence
27
that, but for constitutional error, no reasonable
28
///
2
1
factfinder would have found the applicant guilty of the
2
underlying offense.
3
(3)(A) Before a second or successive application permitted by this
4
section is filed in the district court, the applicant shall move in the
5
appropriate court of appeals for an order authorizing the district court
6
to consider the application.
7
Therefore, because the Petition now pending challenges the same
8
conviction as Petitioner’s Prior Petition, it constitutes a second and/or successive
9
petition within the meaning of 28 U.S.C. § 2244(b). To the extent Petitioner seeks
10
to pursue the same claims he previously asserted, the Petition is barred by the
11
provisions of 28 U.S.C. § 2244(b)(1). To the extent Petitioner seeks to pursue
12
claims not previously asserted, it was incumbent on him under § 2244(b)(3)(A) to
13
secure an order from the Ninth Circuit authorizing the District Court to consider
14
the Petition, prior to his filing of it in this Court. Petitioner’s failure to secure
15
such an order from the Ninth Circuit deprives the Court of subject matter
16
jurisdiction.
17
18
“REFERRAL” OF HABEAS CORPUS PETITION TO NINTH CIRCUIT
19
Ninth Circuit Rule 22-3(a) states, in pertinent part, that “[i]f a second or
20
successive petition or motion, or an application for authorization to file such a
21
petition or motion, is mistakenly submitted to the district court, the district court
22
shall refer it to the court of appeals.”
Therefore, to the extent the Petition was “mistakenly submitted” to this
23
24
Court, the Petition must be referred to the court of appeals. However, it is unclear
25
whether the district court may both “refer” the Petition to the Ninth Circuit and, at
26
the same time, dismiss the Petition. After reviewing numerous district court cases
27
///
28
///
3
1
in this circuit, this Court concludes that simultaneous referral and dismissal is
2
appropriate. See Cielto v. Hedgpeth, 2014 WL 1801110 (C.D. Cal. Apr. 23,
3
2014).
4
5
6
DENIAL OF CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing § 2254 Actions provides:
7
(a) Certificate of Appealability. The district court must
8
issue or deny a certificate of appealability when it enters
9
a final order adverse to the applicant. Before entering
10
the final order, the court may direct the parties to submit
11
arguments on whether a certificate should issue. If the
12
court issues a certificate, the court must state the specific
13
issue or issues that satisfy the showing required by 28
14
U.S.C. § 2253(c)(2). If the court denies a certificate, the
15
parties may not appeal the denial but may seek a
16
certificate from the court of appeals under Federal Rule
17
of Appellate Procedure 22. A motion to reconsider a
18
denial does not extend the time to appeal.
19
Here, given the Court’s ruling on settled legal issues, the Court does not
20
require any arguments from the parties on whether a certificate of appealability
21
(“COA”) should issue.
22
Under 28 U.S.C. § 2253(c)(2), a COA may issue “only if the applicant has
23
made a substantial showing of the denial of a constitutional right.” Here, the
24
Court dismissed the petition on the ground that it was a second or successive
25
petition. Thus, the Court’s determination of whether a COA should issue is
26
governed by the Supreme Court’s decision in Slack v. McDaniel, 529 U.S. 473,
27
120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000), where the Supreme Court held that,
28
“[w]hen the district court denies a habeas petition on procedural grounds without
4
1
reaching the prisoner’s underlying constitutional claim, a COA should issue when
2
the prisoner shows, at least, that jurists of reason would find it debatable whether
3
the petition states a valid claim of the denial of a constitutional right and that
4
jurists of reason would find it debatable whether the district court was correct in
5
its procedural ruling.” 529 U.S. at 484. As the Supreme Court further explained:
6
Section 2253 mandates that both showings be made before the court
7
of appeals may entertain the appeal. Each component of the §
8
2253(c) showing is part of a threshold inquiry, and a court may find
9
that it can dispose of the application in a fair and prompt manner if it
10
proceeds first to resolve the issue whose answer is more apparent
11
from the record and arguments.
12
529 U.S. at 485.
13
Here, the Court finds that its ruling is not one in which “jurists of reason
14
would find it debatable whether the district court was correct in its procedural
15
ruling” that the Court has no jurisdiction over the Petition.
16
17
ORDER
Pursuant to Ninth Circuit Rule 22-3(a), the Court refers the habeas Petition
18
19
to the U.S. Court of Appeals for the Ninth Circuit for consideration as an
20
application for leave to file a second-or-successive habeas petition. The Clerk of
21
Court shall send a copy of the habeas Petition and a copy of this Order to the
22
Clerk of the U.S. Court of Appeals for the Ninth Circuit.
The Clerk of Court shall provide petitioner with a form recommended by
23
24
the Ninth Circuit for filing an Application for Leave to File Second or Successive
25
Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255.
26
///
27
///
28
///
5
1
This action is dismissed without prejudice for lack of subject-matter
2
jurisdiction pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the
3
United States District Courts.
4
5
LET JUDGMENT BE ENTERED ACCORDINGLY.
A certificate of appealability is denied.
6
7
DATED: April 11, 2018
_____________________
GEORGE H. WU
United States District Judge
8
9
10
11
12
13
14
Presented by:
/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
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?