Donnie Ray McKinley v. Raymond Madden

Filing 6

ORDER TO SHOW CAUSE by Magistrate Judge John D. Early. IT THEREFORE IS ORDERED that on or before July 10, 2017, Petitioner show cause in writing why the Court should not dismiss this action with prejudice because Petitioner failed to secure an order from the Ninth Circuit authorizing the District Court to consider the Petition, prior to filing it in this Court. Response to Order to Show Cause due by 7/10/2017. (twdb)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

EASTERN DIVISION

11

DONNIE RAY MCKINLEY JR.,
Petitioner,

12
13
14
15

v.
RAYMOND MADDEN, Warden,
Respondent.

16

) Case No.: EDCV 17-01023-VBF (JDE)
)
)
) ORDER TO SHOW CAUSE
)
)
)
)
)
)
)
)

17
18

On May 23, 2017, Petitioner Donnie Ray McKinley Jr. (“Petitioner”)

19

filed a Petition for Writ of Habeas Corpus by a Person in State Custody

20

(“Petition” or “Pet.”). The Petition appears to be directed to a 1996 conviction

21

sustained by Petitioner in the Riverside County Superior Court. Petitioner

22

raises a single ground for relief, alleging that his equal protection rights have

23

been violated. (Pet. at 10.)

24

Based on its review of the Petition, as well as information derived from

25

the docket of the United States District Court, Central District of California, it

26

appears to the Court that the Petition herein constitutes a second or successive

27

petition under 28 U.S.C. § 2244(b), as Petitioner previously sought habeas

28

relief from the same 1996 judgment of conviction.

1

The Antiterrorism and Effective Death Penalty Act of 1996 (the

2

“AEDPA”) applies to the instant action because Petitioner filed it after the

3

AEDPA’s effective date of April 24, 1996. See Campbell v. Henry, 614 F.3d

4

1056, 1058 (9th Cir. 2010). The AEDPA “greatly restricts the power of federal

5

courts to award relief to state prisoners who file second or successive habeas

6

corpus applications.” Tyler v. Cain, 533 U.S. 656, 661 (2001). Title 28, United

7

States Code, Section 2244(b) provides, in pertinent part, as follows:

8

(1) A claim presented in a second or successive habeas

9

corpus application under section 2254 that was presented in a prior

10

application shall be dismissed.

11

(2) A claim presented in a second or successive habeas

12

corpus application under section 2254 that was not presented in a

13

prior application shall be dismissed unless –

14

(A) the applicant shows that the claim relies on a new

15

rule of constitutional law, made retroactive to cases on

16

collateral review by the Supreme Court, that was previously

17

unavailable; or

18

(B)(i) the factual predicate for the claim could not have

19

been discovered previously through the exercise of due

20

diligence; and

21

(ii) the facts underlying the claim, if proven and

22

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

23

sufficient to establish by clear and convincing evidence that,

24

but for constitutional error, no reasonable factfinder would

25

have found the applicant guilty of the underlying offense.

26

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

27

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

28

in the appropriate court of appeals for an order authorizing the
2

1

district court to consider the application.

2

A petitioner’s failure to obtain authorization from the appropriate

3

appellate court before filing a second or successive habeas petition deprives the

4

district court of jurisdiction to consider the petition. See Burton v. Stewart, 549

5

U.S. 147, 157 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001)

6

(per curiam).

7

Here, Petitioner previously challenged his 1996 conviction in at least

8

three habeas petitions in the Central District of California: (1) Donnie Ray

9

McKinley v. Larry E. Scribner, 5:07-cv-00987-VBF-OP (“First Action”); (2)

10

Donnie Ray McKinley v. Larry Small, 5:10-cv-00845-VBF-OP (“Second

11

Action”); and (3) Donnie Ray McKinley v. R T C Grounds, 5:13-cv-00879-

12

VBF-OP (“Third Action”). The First Action was dismissed with prejudice as

13

time-barred on November 1, 2007. (First Action, Dkt. No. 8.) Petitioner filed

14

an appeal, but his requests for a certificate of appealability were denied by the

15

district court and the Ninth Circuit. (Id., Dkt. Nos. 15, 18.) The Second Action

16

was dismissed with prejudice as untimely and for failure to state a claim for

17

federal habeas relief. (Second Action, Dkt. Nos. 16-17.) The Third Action was

18

dismissed without prejudice for lack of subject matter jurisdiction. (Third

19

Action, Dkt. Nos. 4-5.) Although Petition claims in instant Petition that he is

20

not “attack[ing] a conviction or a sentence” (Pet. at 2), a review of the

21

supporting memorandum demonstrates otherwise. The allegations of the

22

Petition reflect that Petitioner is, in fact, challenging the same 1996 conviction

23

at issue in his previous habeas petitions, including the California Court of

24

Appeal’s 1998 decision on direct appeal. (See, e.g., id. at 12 (“Petitioner [was]

25

unfairly prejudiced by appellate court’s opinion deciding Petitioner was more

26

culpable than defendant in People v. Dillion (1983) 34 Cal. 3d 441”), 13

27

(alleging that felony murder unfairly prejudices youthful aid and abettors”), 20

28

(alleging that “his sentence is wholly unfair”).) As explained, however,
3

1

Petitioner’s First and Second Actions were dismissed with prejudice as

2

untimely. Because a dismissal of a habeas petition for untimeliness “presents a

3

‘permanent and incurable’ bar to federal review of the underlying claims,”

4

“dismissal of a section 2254 habeas petition for failure to comply with the

5

statute of limitations renders subsequent petitions second or successive for

6

purposes of the AEDPA.” McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir.

7

2009). Thus, the Petition now pending constitutes a second and/or successive

8

petition and as such, Petitioner must obtain permission from the Ninth Circuit

9

before this Court can adjudicate any challenge to his 1996 conviction. Nothing

10

in the record demonstrates that Petitioner has obtained the requisite

11

authorization from the Ninth Circuit and Petitioner does not claim that he

12

sought or received such authorization. Indeed, it appears that Petitioner

13

currently has an application for permission to file a second or successive

14

habeas petition pending before the Ninth Circuit Court of Appeals, seeking to

15

challenge the 1996 conviction on different grounds. See Donnie v. McKinley v.

16

Raymond Madden, Case No. 17-70902. Therefore, it appears that the Court

17

lacks jurisdiction to adjudicate Petitioner’s challenge to his 1996 conviction.

18

IT THEREFORE IS ORDERED that on or before July 10, 2017,

19

Petitioner show cause in writing why the Court should not dismiss this action

20

with prejudice because Petitioner failed to secure an order from the Ninth

21

Circuit authorizing the District Court to consider the Petition, prior to filing it

22

in this Court.

23

//

24

//

25

//

26

//

27

//

28

//
4

1

Petitioner is expressly warned that his failure to timely respond to this

2

Order may result in the Petition being dismissed for the reasons stated

3

above and for failure to prosecute.

4
5

Dated:

June 9, 2017 ______

6

______________________________
JOHN D. EARLY
United States Magistrate Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5