Simmons v. People of the State of California

Filing 7

FINDINGS and RECOMMENDATIONS that 1 Petition be dismissed as unauthorized successive petition for a writ of habeas corpus, that all pending motions be denied as moot and that the court decline to issue a certificate of appealability 1 , 4 . ORDE R directing the court clerk to assign the case to a district judge; case randomly assigned to District Judge Dale A. Drozd signed by Magistrate Judge Jeremy D. Peterson on 5/31/2018. Referred to Judge Dale A Drozd; Objections to F&R due by 7/5/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE SIMMONS,

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Petitioner,

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v.
PEOPLE OF THE STATE OF
CALIFORNIA,

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Case No. 1:18-cv-00451-JDP
FINDINGS AND RECOMMENDATIONS
THAT PETITION BE DISMISSED AS AN
UNAUTHORIZED SUCCESSIVE PETITION
FOR A WRIT OF HABEAS CORPUS, THAT
ALL PENDING MOTIONS BE DENIED AS
MOOT, AND THAT THE COURT DECLINE
TO ISSUE A CERTIFICATE OF
APPEALABILITY

Respondent.
ORDER DIRECTING THE COURT CLERK
TO ASSIGN THE CASE TO A DISTRICT
JUDGE

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(Doc. Nos. 1, 4)

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Pro se petitioner Lawrence Simmons is proceeding in forma pauperis with a petition for a

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writ of habeas corpus. Petitioner captions his petition as one filed under 28 U.S.C. § 2244, a

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provision that provides no basis for habeas corpus relief. The undersigned will construe the

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petition as one filed under 28 U.S.C. § 2254, since petitioner is a state prisoner.1 The matter is

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before the court for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases.

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Under Rule 4, a district court must dismiss a habeas petition if it “plainly appears” that the

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Petitioner does not argue that he is entitled to habeas relief under 28 U.S.C. § 2241 or the
savings clause under § 2255. See generally Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir.
2008).
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petitioner is not entitled to relief. The undersigned will recommend that the court dismiss the

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instant petition as an unauthorized successive petition.

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Background
Petitioner is in state custody pursuant to a judgment of the Superior Court of California,

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County of Fresno, following his conviction of one count of first-degree murder, one count of

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attempted murder, and one count of attempted robbery. See Simmons v. Galaza, 1:99-cv-6338,

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Doc. No. 98, at 5-8 (E.D. Cal. March 16, 2005) (recounting facts of robbery and shooting). In

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1999, petitioner filed a § 2254 habeas petition challenging his custody. See Simmons, 1:99-cv-

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6338, Doc. No. 1. After six years of litigation, the court denied his petition on the merits. See

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Simmons, 1:99-cv-6338, Doc. Nos. 98, 100. Petitioner filed another habeas petition under § 2254

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in 2011, and the court denied the petition at screening, explaining that petitioner had failed to

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obtain leave from the U.S. Court of Appeals for the Ninth Circuit to pursue a successive petition.

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See Simmons v. Lopez, 1:11-cv-1069, Doc. No. 7 (E.D. Cal. July 28, 2011). Petitioner recently

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filed another petition in state court, which the Supreme Court of California denied as untimely on

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March 14, 2018. (Doc. No. 1, at 6.) A few days later, on March 29, 2018, petitioner filed the

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petition now before the court.

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2.

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Discussion
A district court is barred from considering a second or successive habeas corpus petition

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unless the petitioner obtains leave from the court of appeals to file such a petition. See 28 U.S.C.

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§ 2244(b)(3)(A); Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018). Petitioner acknowledges

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that the petition here is successive to his prior petitions; indeed, he has even captioned his petition

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as one filed under § 2244—a provision that limits the rights of detained individuals to file

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successive habeas petitions but does not provide a basis for a habeas petition. (Doc. No. 1, at 1.)

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Petitioner contends, however, that an intervening change of law, newly-discovered evidence, and

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his claim of actual innocence justify another habeas review by this court.

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Petitioner is mistaken. Even if a change of law and newly-discovered evidence made his

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new petition meritorious, petitioner may not proceed in this court without leave from the U.S.

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Court of Appeals for the Ninth Circuit. See §§ 2244(b)(3)(A), (b)(4); Burton v. Stewart, 549 U.S.
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147, 152 (2007). Similarly, a claim of actual innocence does not allow petitioner to bypass the

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requirement that he seek the appellate court’s leave. See § 2244(b)(3)(A). Since petitioner has

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not obtained the required permission from the court of appeals, the undersigned will recommend

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dismissal of the petition as an unauthorized successive petition.

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Petitioner asks for appointment of counsel (Doc. No. 1, at 11) and moves to amend his

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petition to add other grounds for habeas relief (Doc. No. 4). Since the court lacks jurisdiction to

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consider the petition, we do not reach these requests. If petitioner obtains leave to file a

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successive petition, he may at that point request counsel and file an amended petition.

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Certificate of Appealability
A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district

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court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253;

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Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases

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requires a district court to issue or deny a certificate of appealability when entering a final order

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adverse to a petitioner. See Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268,

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1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This

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standard requires the petitioner to show that “jurists of reason could disagree with the district

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court’s resolution of his constitutional claims or that jurists could conclude the issues presented

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are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see Slack

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v. McDaniel, 529 U.S. 473, 484 (2000). The petitioner must show “something more than the

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absence of frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at 338.

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Reasonable jurists would not disagree that the petition here is an unauthorized successive

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petition and that it should not proceed further. Thus, the undersigned will recommend that the

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court decline to issue a certificate of appealability.

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4.

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Recommendations
The undersigned recommends that the petition be dismissed as an unauthorized successive

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petition, that the pending motions be denied as moot, and that the court decline to issue a

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certificate of appealability.
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The undersigned submits the findings and recommendations to the U.S. District Court

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Judge who will be assigned to the case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within

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THIRTY (30) days of the service of the findings and recommendations, petitioner may file

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written objections to the findings and recommendations with the court and serve a copy on all

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parties. That document must be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The assigned District Judge will then review the findings and

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recommendations under 28 U.S.C. § 636(b)(1)(C). Petitioner’s failure to file objections within

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the specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772

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F.3d 834, 839 (9th Cir. 2014).
The clerk of court is directed to assign this case to a district judge who will review the
findings and recommendations.

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IT IS SO ORDERED.
Dated:

May 31, 2018

/s/

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Jeremy D. Peterson

UNITED STATES MAGISTRATE JUDGE

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