Adrian Solorio v. W. Sullivan

Filing 3

ORDER OF DISMISSAL by Judge Otis D. Wright, II, re Petition for Writ of Habeas Corpus (2254) 1 . IT IS ORDERED that the Petition be dismissed without prejudice. [Case Terminated. Made JS-6.] (et)

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Case 8:21-cv-01426-ODW-AS Document 3 Filed 09/08/21 Page 1 of 8 Page ID #:19 1 2 JS-6 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION 11 12 13 ADRIAN SOLORIO, 14 15 16 17 Petitioner, v. W. SULLIVAN, Warden, Respondent. 18 ) Case No. SACV 21-01426-ODW (AS) ) ) ORDER OF DISMISSAL ) ) ) ) ) ) ) ) 19 20 I. BACKGROUND 21 22 On August 30, 2021, Adrian Solorio (“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”). (Dkt. No. 1). Petitioner challenges 26 his 2009 conviction for first degree murder, various firearm 27 enhancements, and sentence of life without the possibility of 28 parole, in Orange County Superior Court (Case No. 6CF1702). (See Case 8:21-cv-01426-ODW-AS Document 3 Filed 09/08/21 Page 2 of 8 Page ID #:20 1 Petition at 2).1 The Petition alleges the following grounds for 2 federal habeas relief: (1) Petitioner was wrongfully convicted 3 and has the right to have a handgun tested pursuant to California 4 Penal Code (“P.C.”) § 1405; (2) Petitioner was convicted with 5 material false evidence and has the right to bring a habeas corpus 6 petition pursuant to Senate Bill Section 1137; (3) The prosecution 7 intimidated Petitioner and made him violate his Fifth Amendment 8 right against self-incrimination, and the felony murder rule and 9 the natural and probable consequences doctrine have been amended 10 under Senate Bill 1437 (P.C. § 1170.95); (4) Firearm enhancements 11 should be stricken or dismissed under Senate Bill 620 (P.C. § 12 12022.53); and (5) Petitioner is entitled to a youth offender 13 parole hearing under Senate Bill 260 (P.C. § 3051(b)(1)). 14 (Petition at 5-6).2 15 16 On July 19, 2012, Petitioner filed a Petition for Writ of 17 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 18 § 2254, in which he challenged the same 2009 conviction, firearm 19 20 21 22 23 24 25 26 27 28 1 The Court takes judicial notice of the pleadings in Adrian Solorio v. Ron Barnes, Warden, Case No. SACV 12-01175-GAF (RZ), which, on May 6, 2015, was transferred to the calendar of District Judge Manuel Real and the undersigned Magistrate Judge. See SACV 12-01175-R (AS); Dkt. Nos. 52-53. 2 Petitioner has filed two habeas petitions which contain the same allegations as the Petition: On June 9, 2021, Petitioner filed a habeas petition in Adrian Solorio v. W. Sullivan, Warden, Case No. SACV 21-01038-ODW (AS), which was dismissed on June 15, 2021, without prejudice as an unauthorized, successive petition. Id., Dkt. Nos. 1, 4; and on June 3, 2021, Petitioner filed a habeas petition in Adrian Solorio v. W. Sullivan, Warden, Case No. SACV 21-01006-ODW (AS), which was dismissed on June 10, 2021, without prejudice as an unauthorized, successive petition. Id., Dkt. Nos. 1, 3. 2 Case 8:21-cv-01426-ODW-AS Document 3 Filed 09/08/21 Page 3 of 8 Page ID #:21 1 enhancements, and sentence (“prior habeas action”). See Adrian 2 Solorio v. Ron Barnes, Warden, Case No. SACV 12-01175-R (AS); Dkt. 3 No. 1. On June 10, 2013, the Court issued an Order and Judgment 4 dismissing the prior habeas action with prejudice, in accordance 5 with the findings and recommendations of the assigned Magistrate 6 Judge. Id.; Dkt. Nos. 35-36. On the same date, the Court denied 7 Petitioner a certificate of appealability. 8 May 20, 2014, the Ninth Circuit Court Id.; Dkt. No. 37. of Appeals 9 Petitioner’s request for a certificate of appealability. On denied Id.; 10 Dkt. No. 46.3 11 12 II. DISCUSSION 13 14 The Antiterrorism and Effective Death Penalty Act of 1996 15 (“AEDPA”), enacted on April 24, 1996, provides in pertinent part 16 that: 17 18 (a) No circuit or district judge shall be 19 required to entertain an application for a writ of 20 habeas corpus to inquire into the detention of a 21 person pursuant to a judgment of a court of the 22 United States if it appears that the legality of such 23 detention has been determined by a judge or court of 24 the United States on a prior application for a writ 25 of habeas corpus, except as provided in §2255. 26 27 28 3 The Court subsequently denied two Motions for Relief from Judgment pursuant to Fed.R.Civ.P 60(b)(6). Id.; Dkt. Nos. 54, 57, 3 Case 8:21-cv-01426-ODW-AS Document 3 Filed 09/08/21 Page 4 of 8 Page ID #:22 1 (b)(1) A claim presented in a second or 2 successive habeas corpus application under section 3 2254 that was presented in a prior application shall 4 be dismissed. 5 (2) A claim presented in a second or successive 6 habeas corpus application under section 2254 that was 7 not 8 dismissed unless-- presented in a prior application shall be 9 (A) the applicant shows that the claim relies on 10 a new rule of constitutional law, made retroactive to 11 cases on collateral review by the Supreme Court, that 12 was previously unavailable; or 13 (B)(i) the factual predicate for the claim could 14 not 15 exercise of due diligence; and have been discovered previously through the 16 (ii) the facts underlying the claim, if proven 17 and viewed in light of the evidence as a whole, would 18 be sufficient to establish by clear and convincing 19 evidence 20 reasonable fact finder would have found the applicant 21 guilty of the underlying offense. that, but for constitutional error, no 22 (3)(A) Before a second or successive application 23 permitted by this section is filed in the district 24 court, the applicant shall move in the appropriate 25 court 26 district court to consider the application. of appeals for an order authorizing the 27 (B) A motion in the court of appeals for an 28 order authorizing the district court to consider a 4 Case 8:21-cv-01426-ODW-AS Document 3 Filed 09/08/21 Page 5 of 8 Page ID #:23 1 second or successive application shall be determined 2 by a three-judge panel of the court of appeals. 3 (C) The court of appeals may authorize the 4 filing of a second or successive application only if 5 it determines that the application makes a prima 6 facie showing that the application satisfies the 7 requirements of this subsection. 8 9 (D) The court of appeals shall grant or deny the authorization to file a second or successive 10 application not later than 30 days after the filing 11 of the motion. 12 (E) The grant or denial of an authorization by 13 a court of appeals to file a second or successive 14 application shall not be appealable and shall not be 15 the subject of a Petition for Rehearing or for a Writ 16 of Certiorari. 17 (4) A district court shall dismiss any claim 18 presented in a second or successive application that 19 the court of appeals has authorized to be filed 20 unless the applicant shows that the claim satisfies 21 the requirements of this section. 28 U.S.C. § 2244. 22 23 28 U.S.C. § 2244(b)(3) “creates a ‘gatekeeping’ mechanism for 24 the consideration of second or successive applications in district 25 court. The prospective applicant must file in the court of 26 appeals a motion for leave to file a second or successive habeas 27 application in the district court. 28 Turpin, 518 U.S. 651, 657(1996). 5 § 2244(b)(3)(A).” Felker v. Case 8:21-cv-01426-ODW-AS Document 3 Filed 09/08/21 Page 6 of 8 Page ID #:24 1 The instant Petition and the prior habeas action challenge 2 Petitioner’s custody pursuant to the same 2009 judgment entered 3 by the Orange County Superior Court. Accordingly, the instant 4 Petition, filed on August 30, 2021, well after the effective date 5 of the AEDPA, is a second or successive habeas petition for 6 purposes of 28 U.S.C. § 2244. Therefore, Petitioner was required 7 to obtain authorization from the Court of Appeals before filing 8 the present Petition. See 28 U.S.C. §2244(b)(3)(A). Although 9 Petitioner may have submitted an application for leave to file a 10 second or successive petition to the Ninth Circuit Court of 11 Appeals (see Petition, Attachment), no authorization has been 12 obtained in this case. 13 14 Moreover, the claims asserted in the instant Petition do not 15 appear to fall within the exceptions to the bar on second or 16 successive petitions because the asserted claims are not based on 17 newly discovered facts or a “a new rule of constitutional law, 18 made retroactive to cases on collateral review by the Supreme 19 Court, that was previously unavailable.” Tyler v. Cain, 533 U.S. 20 656, 662 (2001); see also Johnson v. California, 2019 WL 4276636, 21 at n.3 (C.D. Cal. Sept. 10, 2019)(“[A] new state right afforded 22 by an amended state statute does not create a new federal 23 constitutional right and certainly is not the equivalent of a 24 federal constitutional right newly recognized by the United States 25 Supreme Court and made retroactively applicable to cases on 26 collateral review.”; quoting Trejo v. Sherman, 2016 WL 9075049, 27 at *2 (C.D. Cal. Oct. 24, 2016), report and recommendation 28 accepted, 2016 WL 8738143 (C.D. Cal. Nov. 18, 2016)). 6 However, Case 8:21-cv-01426-ODW-AS Document 3 Filed 09/08/21 Page 7 of 8 Page ID #:25 1 this determination must be made by the United States Court of 2 Appeals upon a petitioner’s motion for an order authorizing the 3 district court to consider his second or successive petition. 28 4 U.S.C. § 2244(b); see Burton v. Stewart, 549 U.S. 147, 157 (2007) 5 (where the petitioner did not receive authorization from the Court 6 of Appeals before filing second or successive petition, “the 7 District Court was without jurisdiction to entertain [the 8 petition]”); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000) 9 (“[T]he prior-appellate-review mechanism set forth in § 2244(b) 10 requires the permission of the court of appeals before ‘a second 11 or successive habeas application under § 2254’ may be 12 commenced.”). 13 14 Because Petitioner has not obtained authorization from the 15 Ninth Circuit Court of Appeals, this Court cannot entertain the 16 present Petition. See Burton v. Stewart, 549 U.S. at 157. 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 28 7 Case 8:21-cv-01426-ODW-AS Document 3 Filed 09/08/21 Page 8 of 8 Page ID #:26 1 III. ORDER 2 3 ACCORDINGLY, IT IS ORDERED that the Petition be dismissed 4 without prejudice. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 DATED: September 8, 2021 9 10 11 ____________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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