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)

Download PDF
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION 11 12 13 GERARDO LUCIANO TAPIA, 14 Petitioner, 15 v. 16 J.L. SULLIVAN, Warden, 17 Respondent. 18 ) Case No. EDCV 17-01106-ODW (AS) ) ) ORDER OF DISMISSAL ) ) ) ) ) ) ) ) 19 20 I. BACKGROUND 21 22 On June 6, 2017, Gerardo Luciano Tapia (“Petitioner”), a 23 California state prisoner proceeding pro se, filed a Petition for 24 Writ of Habeas Corpus by a Person in State Custody pursuant to 28 25 U.S.C. § 2254 (“Petition”).1 26 sentence resulting from his 2010 convictions for seven counts of Petitioner challenges his 57-year 27 1 28 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. 1 committing 2 fourteen by force, violence, duress, menace or fear and one count 3 of attempted aggravated sexual assault of a child under age 4 fourteen, 5 RIF150883).2 6 federal habeas relief: Petitioner received an excessive sentence 7 because the trial court sentenced him to consecutive terms, in 8 violation of Cunningham v. California, 549 U.S. 270 (2007)3; 9 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 10 11 12 13 14 15 16 17 18 19 20 21 2 The Court takes judicial notice of the pleadings in Gerardo Luciano Tapia v. Kim Holland, Warden, Case No. EDCV 1401692-ODW (RNB). 3 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). 22 4 23 24 25 26 27 28 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.”). 2 1 On August 15, 2014, Petitioner filed a Petition for Writ of 2 Habeas Corpus by a Person in State Custody by a Person in State 3 Custody pursuant to 28 U.S.C. § 2254, in which he challenged the 4 same 2010 convictions (“prior habeas action”). 5 Luciano Tapia v. Kim Holland, Warden, Case No. EDCV 14-01692-ODW 6 (RNB)(Docket Entry No. 1). 7 an Order and Judgment denying that habeas petition and dismissing 8 the action with prejudice, in accordance with the findings and 9 recommendations of the assigned Magistrate Judge. See Gerardo On April 21, 2015, the Court issued (Id.; Docket 10 Entry Nos. 25-26). 11 a certificate of appealability. (Id.; Docket Entry No. 24). 12 April 27, 2017, Petitioner filed a “Motion to Reopen Time for 13 Appeal,” which the Court denied on May 8, 2017. 14 Entry Nos. 32, 34). On the same date, the Court denied Petitioner On (Id.; Docket 15 16 On March 21, 2017, Petitioner filed a “Petition for Writ of 17 Mandate/Prohibition,” which the Court construed as a Petition for 18 Writ of Habeas Corpus by a Person in State Custody pursuant to 28 19 U.S.C. § 2254 (see Docket Entry No. 3 at 1), in which he 20 challenged the same 2010 convictions. 21 v. United States District Court, Central District of California, 22 Case No. EDCV 17-00525-ODW (AS)(Docket Entry No. 1). 23 24, 2017, the Court issued an Order and Judgment dismissing the 24 action without prejudice as an unauthorized second or successive 25 petition. 26 Court denied Petitioner a certificate of appealability. 27 Docket Entry No. 5). 28 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 3 (Id.; 1 Docket Entry No. 8). 2 // 3 // 4 II. DISCUSSION 5 6 The Antiterrorism and Effective Death Penalty Act of 1996 7 (“AEDPA”), enacted on April 24, 1996, provides in pertinent part 8 that: 9 10 (a) No circuit or district judge shall be 11 required to entertain an application for a writ of 12 habeas corpus to inquire into the detention of a 13 person pursuant to a judgment of a court of the 14 United States if it appears that the legality of such 15 detention has been determined by a judge or court of 16 the United States on a prior application for a writ 17 of habeas corpus, except as provided in §2255. 18 (b)(1) A claim presented in a second or 19 successive habeas corpus application under section 20 2254 that was presented in a prior application shall 21 be dismissed. 22 (2) A claim presented in a second or successive 23 habeas corpus application under section 2254 that was 24 not 25 dismissed unless-- presented in a prior application shall be 26 (A) the applicant shows that the claim relies on 27 a new rule of constitutional law, made retroactive to 28 cases on collateral review by the Supreme Court, that 4 1 was previously unavailable; or 2 (B)(i) the factual predicate for the claim could 3 not 4 exercise of due diligence; and have been discovered previously through the 5 (ii) the facts underlying the claim, if proven 6 and viewed in light of the evidence as a whole, would 7 be sufficient to establish by clear and convincing 8 evidence 9 reasonable fact finder would have found the applicant 10 that, but for constitutional error, no guilty of the underlying offense. 11 (3)(A) Before a second or successive application 12 permitted by this section is filed in the district 13 court, the applicant shall move in the appropriate 14 court 15 district court to consider the application. of appeals for an order authorizing the 16 (B) A motion in the court of appeals for an 17 order authorizing the district court to consider a 18 second or successive application shall be determined 19 by a three-judge panel of the court of appeals. 20 (C) The court of appeals may authorize the 21 filing of a second or successive application only if 22 it determines that the application makes a prima 23 facie showing that the application satisfies the 24 requirements of this subsection. 25 (D) The court of appeals shall grant or deny the 26 authorization 27 application not later than 30 days after the filing 28 of the motion. to file 5 a second or successive 1 (E) The grant or denial of an authorization by 2 a court of appeals to file a second or successive 3 application shall not be appealable and shall not be 4 the subject of a Petition for Rehearing or for a Writ 5 of Certiorari. 6 (4) A district court shall dismiss any claim 7 presented in a second or successive application that 8 the court of appeals has authorized to be filed 9 unless the applicant shows that the claim satisfies 10 the requirements of this section. 28 U.S.C. § 2244. 11 12 28 U.S.C. § 2244(b)(3) “creates a ‘gatekeeping’ mechanism for 13 the consideration of second or successive applications in district 14 court. 15 appeals a motion for leave to file a second or successive habeas 16 application in the district court. 17 Turpin, 518 U.S. 651, 657(1996). The prospective applicant must file in the court of § 2244(b)(3)(A).” Felker v. 18 19 The instant Petition and the prior habeas action both 20 challenge Petitioner’s custody pursuant to the same 2010 judgment 21 entered by the Riverside County Superior Court. 22 instant Petition, filed on June 6, 2017, well after the effective 23 date of the AEDPA, is a second or successive habeas petition for 24 purposes of 28 U.S.C. § 2244. 25 to obtain authorization from the Court of Appeals before filing 26 the present Petition. 27 authorization has been obtained in this case. Accordingly, the Therefore, Petitioner was required See 28 U.S.C. §2244(b)(3)(A). 28 6 No such 1 Moreover, the claims asserted in the instant Petition do not 2 appear to fall within the exceptions to the bar on second or 3 successive petitions because the asserted claims are not based on 4 newly discovered facts or a “a new rule of constitutional law, 5 made retroactive to cases on collateral review by the Supreme 6 Court, that was previously unavailable.” 7 656, 662 (2001). 8 United States Court of Appeals upon a petitioner’s motion for an 9 order authorizing the district court to consider his second or 10 successive petition. 28 U.S.C. § 2244(b); see Burton v. Stewart, 11 549 U.S. 147, 157 (2007) (where the petitioner did not receive 12 authorization from the Court of Appeals before filing second or 13 successive petition, “the District Court was without jurisdiction 14 to entertain [the petition]”); Barapind v. Reno, 225 F.3d 1100, 15 1111 (9th Cir. 2000) (“[T]he prior-appellate-review mechanism set 16 forth in § 2244(b) requires the permission of the court of appeals 17 before ‘a second or successive habeas application under § 2254’ 18 may 19 authorization from the Ninth Circuit Court of Appeals, this Court 20 cannot entertain the present Petition. 21 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, 22 23 To the extent that Petitioner is attempting to allege a claim 24 of actual innocence in an attempt to bypass the successive 25 petition hurdle, see McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 26 (2013) (“We hold that actual innocence, if proved, serves as a 27 gateway through which a petitioner may pass whether the impediment 28 is a procedural bar, as it was in Schlup and House, or, as in this 7 1 case, expiration of the statute of limitations), Petitioner has 2 failed to show the actual innocence exception applies in his case. 3 Under 4 limitations, a petitioner must show that “‘in light of the new 5 evidence, no juror, acting reasonably, would have voted to find 6 him guilty beyond a reasonable doubt.’” 7 supra (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)); see 8 House v. Bell, 547 U.S. 518, 538 (2006) (“A petitioner’s burden 9 at the gateway stage is to demonstrate that more likely than not, 10 in light of the new evidence, no reasonable juror would find him 11 guilty 12 negative, that more likely than not any reasonable juror would 13 have reasonable doubt.”). the actual beyond a innocence reasonable exception doubt–or, to the statute of McQuiggin v. Perkins, to remove the double 14 15 Here, Petitioner’s asserted claim of actual innocence is 16 merely a claim of sentencing error. See Bousley v. United States, 17 523 U.S. 614, 623 (1998) (“‘Actual innocence’ means factual 18 innocence, not mere legal insufficiency.”); Morales v. Ornoski, 19 439 F.3d 529, 533-34 (9th Cir. 2006). 20 not 21 supported by new reliable evidence. 22 at 324 (“To be credible, [a claim of actual innocence] requires 23 petitioner to support his allegations of constitutional error with 24 new 25 evidence, trustworthy eyewitness accounts, or critical physical 26 evidence--that was not presented at trial.”). 27 has not presented an “exceptional case[] involving a compelling 28 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 8 1 Schlup 2 substantial 3 conviction of an innocent person is extremely rare.”); McQuiggin 4 v. Perkins, supra (“We caution, however, that tenable actual- 5 innocence gateway pleas are rare”). v. Delo, supra (“[E]xperience has that constitutional error claim taught has us that caused a the 6 7 Consequently, it does not appear that the actual innocence 8 exception to filing a successive petition would apply, although 9 this is a determination which must be made by the Ninth Circuit 10 Court of Appeals. 11 12 III. ORDER 13 14 15 ACCORDINGLY, IT IS ORDERED that the Petition be dismissed without prejudice. 16 17 LET JUDGMENT BE ENTERED ACCORDINGLY. 18 19 20 21 DATED: July 5, 2017 ____________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 9

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?