Gerardo Luciano Tapia v. J.L. Sullivan

Filing 7

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-EASTERN DIVISION

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GERARDO LUCIANO TAPIA,

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Petitioner,

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v.
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J.L. SULLIVAN, Warden,
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Respondent.
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) Case No. EDCV 17-01106-ODW (AS)
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) ORDER OF DISMISSAL
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I.

BACKGROUND

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On June 6, 2017, Gerardo Luciano Tapia (“Petitioner”), a

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California state prisoner proceeding pro se, filed a Petition for

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Writ of Habeas Corpus by a Person in State Custody pursuant to 28

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U.S.C. § 2254 (“Petition”).1

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sentence resulting from his 2010 convictions for seven counts of

Petitioner challenges his 57-year

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On June 27, 2017, the Court granted Petitioner’s
Request for Leave to Proceed in Forma Pauperis after Petitioner
submitted a Certified Trust Fund Statement signed by an
authorized officer at the prison. See Docket Entry Nos. 5-6.

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committing

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fourteen by force, violence, duress, menace or fear and one count

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of attempted aggravated sexual assault of a child under age

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fourteen,

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RIF150883).2

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federal habeas relief: Petitioner received an excessive sentence

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because the trial court sentenced him to consecutive terms, in

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violation of Cunningham v. California, 549 U.S. 270 (2007)3;

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Petitioner is innocent.

a lewd and lascivious act on a child under age

in

Riverside

County

Superior

Court

(Case

No.

The Petition alleges the following ground for

(Petition at 6-6(a)).4

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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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In Cunningham v. California, 549 U.S. at 293, the
Supreme Court held that California’s Determinate Sentencing Law
(“DSL”) violated a defendant’s Sixth Amendment right to trial by
jury “by placing sentence-elevating factfinding within the
judge’s province.” The Supreme Court found that “the middle term
[of twelve years] prescribed in California’s statutes, not the
upper term [of sixteen years], is the relevant statutory
maximum,” id. at 275, 288-89, and then held that: “[b]ecause
circumstances in aggravation are found by the judge, not the
jury, and need only be established by a preponderance of the
evidence, not beyond a reasonable doubt, the DSL violates
Apprendi’s bright-line rule: Except for a prior conviction, “any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” Id. at 288-89 (citations omitted).

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

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April 27, 2017, Petitioner filed a “Motion to Reopen Time for

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Appeal,” which the Court denied on May 8, 2017.

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Entry Nos. 32, 34).

On the same date, the Court denied Petitioner
On

(Id.; Docket

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On March 21, 2017, Petitioner filed a “Petition for Writ of

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Mandate/Prohibition,” which the Court construed as a Petition for

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Writ of Habeas Corpus by a Person in State Custody pursuant to 28

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U.S.C. § 2254 (see Docket Entry No. 3 at 1), in which he

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challenged the same 2010 convictions.

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v. United States District Court, Central District of California,

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Case No. EDCV 17-00525-ODW (AS)(Docket Entry No. 1).

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24, 2017, the Court issued an Order and Judgment dismissing the

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action without prejudice as an unauthorized second or successive

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petition.

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Court denied Petitioner a certificate of appealability.

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Docket Entry No. 5).

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Petitioner’s request for a certificate of appealability.

See Gerardo Luciano Tapia

(Id.; Docket Entry Nos. 3-4).

On March

On the same date, the
(Id.;

On May 4, 2017, the Ninth Circuit denied

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(Id.;

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Docket Entry No. 8).

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//

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//

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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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(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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that,

but

for

constitutional

error,

no

guilty of the underlying offense.

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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

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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.

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

§ 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.

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instant Petition, filed on June 6, 2017, well after the effective

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date of the AEDPA, is a second or successive habeas petition for

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purposes of 28 U.S.C. § 2244.

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to obtain authorization from the Court of Appeals before filing

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the present Petition.

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authorization has been obtained in this case.

Accordingly, the

Therefore, Petitioner was required

See 28 U.S.C. §2244(b)(3)(A).

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No such

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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 Burton v. Stewart,

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

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authorization from the Court of Appeals before filing second or

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successive petition, “the District Court was without jurisdiction

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to entertain [the petition]”); Barapind v. Reno, 225 F.3d 1100,

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1111 (9th Cir. 2000) (“[T]he prior-appellate-review mechanism set

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forth in § 2244(b) requires the permission of the court of appeals

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before ‘a second or successive habeas application under § 2254’

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may

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authorization from the Ninth Circuit Court of Appeals, this Court

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cannot entertain the present Petition.

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supra.

be

Tyler v. Cain, 533 U.S.

However, this determination must be made by the

commenced.”).

Because

Petitioner

has

not

obtained

See Burton v. Stewart,

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To the extent that Petitioner is attempting to allege a claim

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of actual innocence in an attempt to bypass the successive

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petition hurdle, see McQuiggin v. Perkins, 133 S.Ct. 1924, 1928

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(2013) (“We hold that actual innocence, if proved, serves as a

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gateway through which a petitioner may pass whether the impediment

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is a procedural bar, as it was in Schlup and House, or, as in this
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case, expiration of the statute of limitations), Petitioner has

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failed to show the actual innocence exception applies in his case.

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Under

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limitations, a petitioner must show that “‘in light of the new

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evidence, no juror, acting reasonably, would have voted to find

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him guilty beyond a reasonable doubt.’”

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supra (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)); see

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House v. Bell, 547 U.S. 518, 538 (2006) (“A petitioner’s burden

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at the gateway stage is to demonstrate that more likely than not,

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in light of the new evidence, no reasonable juror would find him

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guilty

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negative, that more likely than not any reasonable juror would

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have reasonable doubt.”).

the

actual

beyond

a

innocence

reasonable

exception

doubt–or,

to

the

statute

of

McQuiggin v. Perkins,

to

remove

the

double

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Here, Petitioner’s asserted claim of actual innocence is

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merely a claim of sentencing error. See Bousley v. United States,

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523 U.S. 614, 623 (1998) (“‘Actual innocence’ means factual

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innocence, not mere legal insufficiency.”); Morales v. Ornoski,

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439 F.3d 529, 533-34 (9th Cir. 2006).

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not

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supported by new reliable evidence.

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at 324 (“To be credible, [a claim of actual innocence] requires

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petitioner to support his allegations of constitutional error with

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new

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evidence, trustworthy eyewitness accounts, or critical physical

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evidence--that was not presented at trial.”).

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has not presented an “exceptional case[] involving a compelling

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claim of actual innocence.”

even

purported

reliable

to

make

a

evidence--whether

Moreover, Petitioner has

showing

it

of

actual

innocence,

See Schlup v. Delo, 513 U.S.

be

exculpatory

scientific

Petitioner simply

House v. Bell, 547 U.S. at 521; see
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Schlup

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substantial

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conviction of an innocent person is extremely rare.”); McQuiggin

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v. Perkins, supra (“We caution, however, that tenable actual-

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innocence gateway pleas are rare”).

v.

Delo,

supra

(“[E]xperience

has

that

constitutional

error

claim

taught
has

us

that

caused

a

the

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Consequently, it does not appear that the actual innocence

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exception to filing a successive petition would apply, although

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this is a determination which must be made by the Ninth Circuit

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Court of Appeals.

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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: July 5, 2017
____________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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