Gerardo Luciano Tapia v. United States District Court Central District of California et al

Filing 3

ORDER OF DISMISSAL by Judge Otis D. Wright, II. IT IS ORDERED that the Petition 1 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-WESTERN DIVISION

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GERARDO LUCIANO TAPIA,

) Case No. CV 17-00525-ODW (AS)
)
Petitioner,
) ORDER OF DISMISSAL
)
)
v.
)
)
UNITED STATES DISTRICT COURT, )
CENTRAL DISTRICT OF
)
CALIFORNIA,
)
)
Respondent.
)
)

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I.

BACKGROUND

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On March 21, 2017, Gerardo Luciano Tapia (“Petitioner”), a

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California state prisoner proceeding pro se, filed a “Petition

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for Writ of Mandate/Prohibition” (“Petition”) (Docket Entry No.

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1), which the Court construes as a Petition for Writ of Habeas

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Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254

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(“Petition”).

Petitioner challenges his 2010 convictions for

seven counts of committing a lewd and lascivious act on a child

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under age fourteen by force, violence, duress, menace or fear and

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one count of attempted aggravated sexual assault of a child under

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age

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RIF150883).1 The Petition appears to allege the following grounds

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for federal habeas relief: (1) Petitioner’s convictions were

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based on the lies by Petitioner’s stepdaughter, a minor; (2)

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Petitioner received ineffective assistance of counsel based on

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trial counsel’s failure to call Petitioner’s wife to testify; (3)

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The trial court committed judicial misconduct in its response to

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the jurors’ question about what happens if the jurors are not

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able to reach a verdict; (4) Petitioner is actually or factually

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innocent; (5) The polygraph evidence presented at trial was

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fabricated; and (6) Petitioner received ineffective assistance of

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counsel based on his trial counsel’s failure to object to the

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trial court’s

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jurors’ question about what happens if the jurors are not able to

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reach a verdict.2

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at 2-7).3

fourteen,

in

Riverside

judidicial

County

misconduct

Superior

in

its

Court

(Case

response

to

No.

the

(Petition, attached “Statement of the facts”

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The Court takes judicial notice of the pleadings in
Gerardo Luciano Tapia v. Kim Holland, Warden, Case No. EDCV 1401692-ODW (RNB).
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Petitioner admits he alleged this last claim in his
2014 federal habeas petition.
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To the extent that Petitioner is attempting to seek
relief from Judgment in Case No. EDCV 14-01692-ODW (RNB) under
Rule 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
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On August 15, 2014, Petitioner filed a Petition for Writ of

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Habeas Corpus by a Person in State Custody by a Person in State

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Custody pursuant to 28 U.S.C. § 2254, in which he challenged the

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same 2010 convictions (“prior habeas action”).

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Luciano Tapia v. Kim Holland, Warden, Case No. EDCV 14-01692-ODW

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(RNB)(Docket Entry No. 1).

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an Order and Judgment denying that habeas petition and dismissing

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the action with prejudice, in accordance with the findings and

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recommendations of the assigned Magistrate Judge.

See Gerardo

On April 21, 2015, the Court issued

(Id.; Docket

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Entry Nos. 25-26).

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a certificate of appealability. (Id.; Docket Entry No. 24).

On the same date, the Court denied Petitioner

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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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that:

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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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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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to protect [his or her] interests.”).
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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
authorization

to

file

a

second

or

successive

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application not later than 30 days after the filing

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of the motion.

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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

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§ 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 Riverside County Superior Court.

Accordingly, the

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instant

well

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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 in this case.

Petition,

filed

on

March

21,

2017,

after

the

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 upon 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 also Burton v.

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

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receive authorization from the Court of Appeals before filing

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second or successive petition, “the District Court was without

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jurisdiction to entertain [the petition]”); Barapind v. Reno, 225

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F.3d 1100, 1111 (9th Cir. 2000) (“[T]he prior-appellate-review

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mechanism set forth in § 2244(b) requires the permission of the

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court of appeals before ‘a second or successive habeas application

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under § 2254’ may be commenced.”).

Tyler v. Cain, 533 U.S.

However, this determination must be made by the

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Because Petitioner has not

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obtained authorization from the Ninth Circuit Court of Appeals,

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this Court cannot entertain the present Petition.

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Stewart, supra.

See Burton v.

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III.

ORDER

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ACCORDINGLY, IT IS ORDERED that the Petition be dismissed
without prejudice.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED:

March 24, 2017
____________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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