Doughton v. Speakman

Filing 23

ORDER signed by District Judge Kimberly J. Mueller on 9/28/2018 ORDERING that the 18 findings and recommendations are NOT ADOPTED. This matter is REFERRED back to the assigned magistrate judge for further proceedings consistent with this order. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CAMITT RUSSELL DOUGHTON,

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No. 2:17-CV-0639-KJM-DMC-P

Petitioner,
v.

ORDER

M. ELIOT SPEARMAN,
Respondent.

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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate

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Judge as provided by Eastern District of California local rules.

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On June 19, 2018, the Magistrate Judge filed findings and recommendations,

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which were served on the parties and which contained notice that the parties may file objections

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within a specified time. Timely objections to the findings and recommendations have been filed.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,

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this court has conducted a de novo review of this case. Having reviewed the file, the court

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declines to adopt the findings and recommendations and refers the matter back to the assigned

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magistrate judge for further proceedings consistent with this order.

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The magistrate judge finds that petitioner’s habeas corpus petition must be
dismissed under 28 U.S.C. § 2244(b)(1) because it “challenges the same conviction and sentence”
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that his prior habeas petition challenged. Findings & Recommendations, ECF No. 18 at 4.

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However, 28 U.S.C. § 2244(b)(1) reads, “[a] claim presented in a second or successive habeas

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corpus application . . . that was presented in a prior application shall be dismissed.” Petitioner’s

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claim that his conviction should be vacated because California Penal Code § 189 is

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unconstitutionally vague under Johnson v. United States is a new claim that was not raised in the

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previous petition. Compare Pet. for Writ of Habeas Corpus, ECF No. 1 (“‘Vague Statute,’

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Petitioners first degree murder conviction . . . is now in violation of petitioner’s right to due

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process . . . . [because] the U.S. Supreme Court has since held that ‘void for vagueness’ holding

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of Johnson case to be applied retroactively . . . .”) (citing Johnson v. United States, 135 S.Ct.

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2551) with Pet. for Writ of Habeas Corpus, Doughton v. McDonald, E.D. Cal. Case No. 2:11-cv-

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2252-JAM-KJN, ECF No. 1 (challenging conviction on other grounds); see also Henry v.

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Spearman, 899 F.3d 703 (9th Cir. 2018) (permitting petitioner to file a successive habeas petition

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to challenge the same second-degree murder charge, because the second petition claimed that the

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relevant statute was unconstitutionally vague under Johnson) (citing Johnson, 135 S.Ct. 2551).

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Therefore, the instant petition falls under 28 U.S.C. § 2244(b)(2).

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Section 2244(b)(2) requires dismissal of a successive petition that raises new

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claims, unless one of two exceptions apply. The first of those exceptions applies when “the

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applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases

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on collateral review by the Supreme Court, that was previously unavailable . . . .” 28 U.S.C.

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§ 2244(b)(2)(A). Petitioner here challenges his conviction under Johnson v. United States. See

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Pet. at 2-3. Johnson created a new rule of constitutional law that was made retroactive to cases

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on collateral review by the Supreme Court in Welch v. United States. Welch v. United States, 136

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S. Ct. 1257, 1265 (2016) (“Johnson is thus a substantive decision and so has retroactive effect

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under Teague in cases on collateral review.”) (citing Teague v. Lane, 489 U.S. 288 (1989));

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Henry v. Spearman, 899 F.3d 703, 705 (9th Cir. 2018) (holding that petitioner’s second habeas

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petition challenging his second-degree felony murder conviction under Johnson “unquestionably

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satisfied” the requirements of § 2244(b)(2)(A), because “Johnson announced a new rule of

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constitutional law retroactively applicable to cases on collateral review”) (citing Welch, 136 S.Ct.
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1257); Blow v. United States, 829 F.3d 170, 172 (2d Cir. 2016) (granting petitioner’s request for

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leave to file a successive habeas petition because “Johnson announced a new rule of

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constitutional law that is retroactive on collateral review”) (citing Welch, 136 S.Ct. 1257); but see

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United States v. Blackstone, No. 17-55023, 2018 WL 4344096, at *7 (9th Cir. Sept. 12, 2018)

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(holding that “Johnson did not announce a new rule that is applicable to the mandatory

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Sentencing Guidelines”) (emphasis added).

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The magistrate judge’s analysis of the petition does not address the controlling decisions

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that appear to guide a properly articulated conclusion regarding the nature of the petition and

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whether it should be dismissed by this court. Accordingly, the matter is referred back to the

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magistrate judge for further consideration in light of this order.

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Accordingly, IT IS HEREBY ORDERED that:

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The findings and recommendations filed June 19, 2018 are not adopted; and

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This matter is referred back to the assigned magistrate judge for further

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proceedings consistent with this order.
DATED: September 28, 2018.

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UNITED STATES DISTRICT JUDGE

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