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

Filing 3

ORDER OF DISMISSAL by Judge Dale S. Fischer. IT IS ORDERED that the Petition be dismissed without prejudice. (see document for further details). Case Terminated. Made JS-6. (hr)

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JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

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DAVID HAMILTON,

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) Case No. CV 21-03446-DSF (AS)
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) ORDER OF DISMISSAL
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Petitioner,

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

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Respondents.

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I.

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BACKGROUND

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On

April

20,

2021,

David

Hamilton

(“Petitioner”),

a

California state prisoner proceeding pro se, filed a “Petition for
Writ Error Coram Vobis to Escape the Limitations Laid Down in Rule
60(b)” (Dkt. No. 1), which the Court construes as a Petition for
Writ of Habeas Corpus by a Person in State Custody pursuant to 28
U.S.C. § 2254 (“Petition”).

Petitioner challenges his 2010

convictions for mayhem and assault by means likely to produce

1 great bodily injury in Los Angeles County Superior Court (Case No.
2 BA339752), as well as his sentence of 46-years-to-life.1

The

3 Petition alleges the following grounds for federal habeas relief:
4 (1) Petitioner is actually innocent; (2) Prior to his arraignment,
5 Petitioner was not administered warnings under Miranda v. Arizona,
6 384 U.S. 436 (1966); (3) The prosecutor failed to disclose
7 exculpatory evidence, in violation of Petitioner’s right to due
8 process; and (4) The withdrawal of Petitioner’s plea of not guilty
9 by reason of insanity was “not done so willingly”; and the trial
10 court’s refusal to allow Petitioner to communicate with standby
11 counsel during trial proceedings was an abuse of discretion.
12 (Petition at 3-8).2
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On November 4, 2014, Petitioner filed a Petition for Writ of

15 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C.
16 § 2254, in which he challenged the same 2010 convictions and
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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) and David Hamilton v. People of the State of California, et
al., Case No. CV 17-08154-DSF (AS). On May 12, 2015, Case No. CV
14-08537-DSF (RZ) was transferred to the calendar of the
undersigned Magistrate Judge. See David Hamilton v. William
Knipp, Warden, Case No. CV 14-08537-DSF (RZ) (Dkt. No. 22).
2

To the extent that Petitioner is attempting to seek
relief from Judgment in Case No. CV 14-08537-DSF (RZ) and/or Case
No. CV 17-08154-DSF (AS) 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 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.”).
2

1 sentence (“prior habeas action”).

See David Hamilton v. William

2 Knipp, Case No. CV 14-08537-DSF (RZ)(Dkt. No. 1).

On June 15,

3 2015, the Court issued an Order and Judgment denying that habeas
4 petition and dismissing the action with prejudice (based on its
5 untimeliness), in accordance with the findings, conclusions and
6 recommendations of the assigned Magistrate Judge. (Id.; Dkt. Nos.
7 28-29).

On

the

same

date,

the

Court

denied

Petitioner

a

8 certificate of appealability. (Id.; Dkt. No. 30). On February 16,
9 2016, the Ninth Circuit Court of Appeals denied Petitioner’s
10 request for a certificate of appealability.

(Id.; Dkt. No. 37).

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On November 8, 2017, Petitioner filed what was construed as

13 a Petition for Writ of Habeas Corpus by a Person in State Custody
14 pursuant

to

28

U.S.C.

§

15 convictions and sentence.

2254,

challenging

the

same

2010

See David Hamilton v. People of the

16 State of California, et al., Case No. CV 17-08154-DSF (AS) (Dkt.
17 Nos. 1, 5 at 1).

On November 27, 2017, the Court issued an Order

18 and Judgment dismissing that habeas petition without prejudice,
19 as an unauthorized, successive petition, and denied Petitioner a
20 Certificate of Appealability.

(Id.; Dkt. Nos. 5-7).

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II.

DISCUSSION

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The Antiterrorism and Effective Death Penalty Act of 1996

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

No

circuit

or
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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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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

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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.
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28 U.S.C. § 2244.

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28 U.S.C. § 2244(b)(3) “creates a ‘gatekeeping’ mechanism for

2 the consideration of second or successive applications in district
3 court.

The prospective applicant must file in the court of

4 appeals a motion for leave to file a second or successive habeas
5 application in the district court.

§ 2244(b)(3)(A).”

Felker v.

6 Turpin, 518 U.S. 651, 657(1996).
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The instant Petition and the prior habeas action challenge

9 Petitioner’s custody pursuant to the same 2010 judgment entered
10 by the Los Angeles County Superior Court.
11 instant

Petition,

filed

on

April

20,

Accordingly, the

2021,

well

after

the

12 effective date of the AEDPA, is a second or successive habeas
13 petition for purposes of 28 U.S.C. § 2244.

Therefore, Petitioner

14 was required to obtain authorization from the Court of Appeals
15 before filing the present Petition. See 28 U.S.C. §2244(b)(3)(A).
16 No such authorization has been obtained in this case.
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Moreover, the claims asserted in the instant Petition do not

19 appear to fall within the exceptions to the bar on second or
20 successive petitions because the asserted claims are not based on
21 newly discovered facts or a “a new rule of constitutional law,
22 made retroactive to cases on collateral review by the Supreme
23 Court, that was previously unavailable.”

Tyler v. Cain, 533 U.S.

24 656, 662 (2001); see also Johnson v. California, 2019 WL 4276636,
25 at n.3 (C.D. Cal. Sept. 10, 2019)(“[A] new state right afforded
26 by

an

amended

state

statute

does

not

create

a

new

federal

27 constitutional right and certainly is not the equivalent of a
28 federal constitutional right newly recognized by the United States
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1 Supreme Court and made retroactively applicable to cases on
2 collateral review.”; quoting Trejo v. Sherman, 2016 WL 9075049,
3 at *2 (C.D. Cal. Oct. 24, 2016), report and recommendation
4 accepted, 2016 WL 8738143 (C.D. Cal. Nov. 18, 2016)).

However,

5 this determination must be made by the United States Court of
6 Appeals upon a petitioner’s motion for an order authorizing the
7 district court to consider his second or successive petition. 28
8 U.S.C. § 2244(b); see Burton v. Stewart, 549 U.S. 147, 157 (2007)
9 (where the petitioner did not receive authorization from the Court
10 of Appeals before filing second or successive petition, “the
11 District

Court

was

without

jurisdiction

to

entertain

[the

12 petition]”); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000)
13 (“[T]he prior-appellate-review mechanism set forth in § 2244(b)
14 requires the permission of the court of appeals before ‘a second
15 or

successive

16 commenced.”).

habeas

application

under

§

2254’

may

be

Because Petitioner has not obtained authorization

17 from the Ninth Circuit Court of Appeals, this Court cannot
18 entertain the present Petition.

See Burton v. Stewart, supra.

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Moreover, even if Petitioner’s claim of actual innocence may

21 fall within the exception to the bar on second or successive
22 petitions because it is based on newly discovered evidence (see
23 Petition at 4-5), this determination must be made by the United
24 States Court of Appeals upon a petitioner’s motion for an order
25 authorizing

the

district

26 successive petition.

court

to

consider

his

second

or

See McQuiggin v. Perkins, 569 U.S. 383, 386

27 (2013)(“We hold that actual innocence, if proved, serves as a
28 gateway through which a petitioner may pass whether the impediment
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1 is a procedural bar, as it was in Schlup and House, or, as in this
2 case, expiration of the statute of limitations.”; Under the actual
3 innocence exception to the statute of limitations, a petitioner
4 must show that “‘in light of the new evidence, no juror, acting
5 reasonably,

would

have

voted

to

find

him

guilty

beyond

a

6 reasonable doubt.’”; citation omitted); House v. Bell, 547 U.S.
7 518, 538 (2006)(“A petitioner’s burden at the gateway stage is to
8 demonstrate that more likely than not, in light of the new
9 evidence, no reasonable juror would find him guilty beyond a
10 reasonable doubt–or, to remove the double negative, that more
11 likely

than

not

any

reasonable

juror

would

have

reasonable

12 doubt.”).
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In any event, Petitioner has not even purported to make a

15 showing of actual innocence, supported by new reliable evidence.
16 See Schlup v. Delo, 513 U.S.

298, 324 (1995)(“To be credible, [a

17 claim of actual innocence] requires petitioner to support his
18 allegations of constitutional error with new reliable evidence-19 whether

it

be

exculpatory

scientific

evidence,

trustworthy

20 eyewitness accounts, or critical physical evidence--that was not
21 presented at trial.”).
22 “exceptional

case[]

23 innocence.”
24 (“[E]xperience

involving

House,
has

Petitioner simply has not presented an

547

taught

a

U.S.
us

compelling
at

that

521;
a

claim

see

of

actual

Schlup,

substantial

claim

supra
that

25 constitutional error has caused the conviction of an innocent
26 person is extremely rare.”); McQuiggin, 569 U.S> at 386 (“We
27 caution, however, that tenable actual-innocence gateway pleas are
28 rare”).
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While it does not appear that the actual innocence exception

2 to filing a successive petition would apply here, this is a
3 determination that must be made by the Ninth Circuit Court of
4 Appeals.
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III.

ORDER

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ACCORDINGLY, IT IS ORDERED that the Petition be dismissed

9 without prejudice.
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LET JUDGMENT BE ENTERED ACCORDINGLY.

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13 DATED:

April 26, 2021

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____________________________
DALE S. FISCHER
UNITED STATES DISTRICT JUDGE

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