Michael Anthony Powell v. R. Madden

Filing 18

ORDER DISMISSING ACTION by Judge Dolly M. Gee, re MOTION to Dismiss 13 . The action must be and is DISMISSED. The pending motion to dismiss [Doc. # 13] is DENIED AS MOOT. (see document for further details) Case Terminated. Made JS-6. (hr)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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MICHAEL ANTHONY POWELL,
Petitioner,

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ORDER DISMISSING ACTION

v.

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Case No. CV 23-555 DMG (MRW)

R. MADDEN, Warden,
Respondent.

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The Court dismisses this habeas corpus action: (a) as successive under
28 U.S.C. §§ 2243 and 2244; and (b) for failure to state a claim.
BACKGROUND

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Petitioner Michael Anthony Powell is currently serving a life term in state
prison based on his 1999 murder conviction. [Doc. # 1 at 2.1]
Petitioner previously sought habeas relief in this Court regarding that
conviction. The Court denied Petitioner’s habeas petition on the merits. Powell
v. Lamarque, No. CV 02-8231-ABC (MAN) (C.D. Cal.). The Ninth Circuit Court
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Citations to the record are to the CM/ECF pagination.

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of Appeals denied a certificate of appealability in that action. CV 02-8231, [Doc.

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# 35].

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In 2022, Petitioner filed an application in the state superior court for

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resentencing pursuant to California Penal Code § 1172.6. The superior court

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denied the request. The state appellate court affirmed the denial of resentencing.

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[Doc. # 13 at 11.]

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Petitioner also sought habeas relief in the state court system in 2022 and

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2023. The state supreme court ultimately denied relief by noting that Petitioner

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raised claims that had previously been rejected on direct appeal. Id. at 12.

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In the current federal habeas action, Petitioner alleges sufficiency of

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evidence and instructional errors related to his original 1999 trial (Grounds Two

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and Four). Petitioner further asserts claims of ineffective assistance of counsel

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and due process violations in connection with the recent resentencing proceedings

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(Grounds One and Three). [Doc. # 1.]

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Hon. Michael R. Wilner, United States Magistrate Judge, screened the

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current petition. [Doc. # 5.] Judge Wilner noted that the action appeared to be

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successive and was not accompanied by a certificate from the Ninth Circuit

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authorizing a second habeas action under 28 U.S.C. § 2244. Judge Wilner further

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noted that Petitioner’s resentencing-based claims were likely not cognizable on

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federal habeas review. Id. at 2–3.

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Petitioner submitted a supplemental memorandum. [Doc. # 9.] In his

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statement, Petitioner contended that his original habeas action was denied for a

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technical error and “not decided on the merits.” Id. at 1. While the bulk of the

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statement was not wholly intelligible, Petitioner claimed that the petition

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adequately identified a “constitutional error.” Id. at 2.

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The Attorney General moved to dismiss the action. [Doc. # 13.] The

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Attorney General contends that Grounds Two and Four in the petition are

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successive under 28 U.S.C. § 2244. The Attorney General also argues that

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Grounds One and Three in the petition do not present a federal constitutional claim

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upon which relief may be granted.

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DISCUSSION

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If it “appears from the application that the applicant or person detained is

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not entitled” to habeas relief, a court may summarily dismiss a habeas action. 28

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U.S.C. § 2243; see also Local Civil Rule 72-3.2 (a magistrate judge may submit

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proposed order for summary dismissal to district judge “if it plainly appears from

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the face of the petition [ ] that the petitioner is not entitled to relief”).

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A.

Successiveness

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Under federal law, a state prisoner is generally required to present all

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constitutional challenges to a state conviction in a single federal action. “Before

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a second or successive [habeas petition] is filed in the district court, the applicant

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shall move in the appropriate court of appeals for an order authorizing the district

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court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).

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A prisoner must obtain authorization from the Court of Appeals to pursue

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such a successive habeas petition before the new petition may be filed in district

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court. Id.; Burton v. Stewart, 549 U.S. 147, 156 (2007) (district court without

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jurisdiction to consider successive habeas action). “If the petition is second or

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successive, then the district court lacks jurisdiction and must dismiss the petition

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unless and until the court of appeals grants an application to file it.” Brown v.

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Muniz, 889 F.3d 661, 667, 676 (9th Cir. 2018) (“petitioner’s burden is higher”

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under statute to bring successive habeas action); Prince v. Lizzaraga, 733 F.

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App’x 382, 384 (9th Cir. 2018) (prisoner “must first apply to this [appellate] court

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for permission to have his petition heard in the district court”).

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Two of Petitioner’s claims are successive. He raised Grounds Two and

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Four of the current petition in his earlier federal habeas action. Contrary to

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Petitioner’s assertion, the Court denied relief in that action (CV 02-8231) on the

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merits over 20 years ago. That makes make the current action successive.

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McNabb, 576 F.3d at 1030.

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permission from the Ninth Circuit to pursue another successive action.

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Petitioner contends that he has “new evidence” or additional reasons to present

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these claims again in this district court, he must present that argument to the

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appellate court in the first instance. Prince, 733 F. App’x at 384. The successive

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claims in the current petition are dismissed for lack of jurisdiction.2 28 U.S.C. §

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2244(b); Brown, 889 F.3d at 667.

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B.

Petitioner presents no proof that he received
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Failure to State a Claim

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A state prisoner must fairly present a federal constitutional claim for habeas

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consideration. Rose v. Lundy, 455 U.S. 509 (1982). A prisoner cannot “transform

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a state-law issue into a federal one merely by asserting a violation of due process.”

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Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). As a result, federal habeas

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relief is “unavailable for an alleged error in the interpretation or application of

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state law.” Windham v. Merkle, 163 F.3d 1092, 1107 (9th Cir. 1998).

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California Penal Code § 1172.6 permits individuals convicted of murder

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under certain specified imputed malice legal theories (felony murder, natural and

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probable consequences doctrine) to petition for resentencing. Nonetheless, “a

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state court’s allegedly erroneous denial of resentencing under Cal. Penal Code

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§ 1172.6 does not raise an issue cognizable on federal habeas review.” Rangel v.

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Cruz, No. CV 23-03754 DSF (JDE), 2023 WL 3828776 at *1 (C.D. Cal. 2023)

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(citations omitted); Walker v. California Supreme Ct., No. CV 22-4838 CAS (E),

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2022 WL 11337927 at 2 (C.D. Cal. 2022) (same; collecting cases).

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Furthermore, as a matter of statutory law, “the ineffectiveness or

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incompetence of counsel during Federal or State collateral post-conviction

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Because this Court does not have jurisdiction over Grounds Two and
Four, it declines to take up the Attorney General’s alternative arguments
regarding the untimeliness of the claims.
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proceedings” does not state a claim cognizable on federal habeas review. 28

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U.S.C. § 2254(i). As such, “a petition cannot claim constitutionally ineffective

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assistance of counsel in” a resentencing proceeding. Coleman v. Thompson, 501

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U.S. 722, 752; Issac v. Atchley, No. CV 22-00570 CAS (JEM), 2023 WL 2169104

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at *3 (C.D. Cal. 2023); Doughton v. Montgomery, 2021 WL 3186567, at *3 (E.D.

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Cal. 2021).

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Neither of Petitioner’s remaining claims in the current petition advances a

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legitimate constitutional claim.

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Petitioner’s resentencing proceedings. That is a state law issue which raises no

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federal constitutional issue. 3 Windham, 163 F.3d at 1107; Rangel, 2023 WL

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3828776 at *1; Walker, 2022 WL 11337927 at 2.

Count Three challenges the outcome of

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Finally, Petitioner’s contention that his lawyer was ineffective during his

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post-conviction resentencing proceedings (Ground One) is simply untenable. The

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plain text of AEDPA and the Supreme Court have clearly stated that there is no

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constitutional claim in that circumstance. 28 U.S.C. § 2254(i); Coleman, 501 U.S.

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at 752; Issac, 2023 WL 2169104 at *3.

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Petitioner’s remaining arguments of supposed constitutional error are too

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conclusory to plausibly state a claim for relief. Langford, 110 F.3d at 1389.

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According to the state appellate court, Petitioner was not convicted
under either of the legal theories specified in the statute. On that basis,
Petitioner was ineligible for relief as a matter of that state law. People v. Powell,
No. B304587) (Cal. App. 2021).
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CONCLUSION

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Based on the successive nature of two of Petitioner’s claims and the failure

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to state a constitutional claim in the remaining claims, Petitioner is not entitled to

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pursue habeas relief. The action must be and is DISMISSED. The pending

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motion to dismiss [Doc. # 13] is DENIED AS MOOT.

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IT IS SO ORDERED.

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DATED: November 13, 2023

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__________
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_________
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_______________________________
DOLLY M
EE
M.. G
GEE
STATES
UNITED S
TATES DISTRICT JUDGE

Presented by:

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____________________________________
HON. MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE

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