Nguyen v. Paramo

Filing 14

ORDER by Judge Haywood S. Gilliam, Jr. OF DISMISSAL; DENYING CERTIFICATE OF APPEALABILITY. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 4/29/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LUC VAN NGUYEN,

Case No. 15-cv-01915-HSG

Petitioner,
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ORDER OF DISMISSAL; DENYING
CERTIFICATE OF APPEALABILITY

v.
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DANIEL PARAMO,

Re: Dkt. No. 12

Respondent.

United States District Court
Northern District of California

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Before the Court is the above-titled pro se petition for a writ of habeas corpus, filed

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pursuant to 28 U.S.C. § 2254 by petitioner Luc Van Nguyen, challenging the validity of a

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judgment obtained against him in state court. Respondent has moved to dismiss the petition as

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untimely and procedurally barred. Docket No. 12. Petitioner has not filed an opposition, and the

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deadline to do so has long since passed. For the reasons set forth below, this action is

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DISMISSED.
BACKGROUND

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In 1998, Petitioner was convicted by a jury in San Mateo County Superior Court on thirty-

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six counts, and sentenced to a term of ninety-three years and eight months in state prison. Docket

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No. 1 (“Pet.”) at 1–2. Petitioner appealed and, on July 31, 2000, the California Court of Appeal

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affirmed the conviction. Docket No. 12, Ex. A. On October 18, 2000, the California Supreme

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Court denied review. Id., Ex. B.

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On August 25, 2014, Petitioner filed a petition for a writ of habeas corpus in the California
Supreme Court, which was denied on October 29, 2014. Docket No. 12, Exs. C and D.
On January 29, 2015, Petitioner filed a federal petition for a writ of habeas corpus, Van
Nguyen v. Paramo, C No 15-00689 LHK (“Van Nguyen I”), in the Southern District of California

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wherein he alleged that trial counsel had been ineffective. Petition at 7–8, Van Nguyen v. Paramo,

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C No 15-00689 LHK (N.D. Cal. filed Jan. 29, 2015). On February 13, 2015, Van Nguyen I was

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transferred to the Northern District of California. On November 19, 2015, Van Nguyen I was

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dismissed as untimely. Order Granting Respondent’s Motion to Dismiss; Denying Certificate of

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Appealability, Van Nguyen v. Paramo, C No 15-00689 LHK (N.D. Cal. filed Nov. 19, 2015).

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On April 29, 2015, while Van Nguyen I was pending, Petitioner filed the instant federal

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petition for a writ of habeas corpus, alleging that his conviction on thirty-six counts was based on

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hearsay or rumor; that his sentence was excessive; and that his trial attorney failed to present

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evidence and arguments that would have exonerated him. Docket No. 1.

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United States District Court
Northern District of California

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DISCUSSION
Respondent has moved to dismiss the petition as both untimely and procedurally barred.

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Docket No. 12. Respondent’s motion to dismiss contains information that convinces the Court

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that the petition must be dismissed on a threshold procedural ground (i.e., that it is successive) and

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that the Court should not reach the timeliness issue or the procedural bar issue.

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Here, the instant petition challenges the same conviction and sentence as Petitioner’s

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earlier-filed federal habeas action, Van Nguyen I, which was dismissed as untimely. The claims

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found cognizable in the instant action differ from the claims found cognizable in Van Nguyen I.

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Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), where a claim

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presented in a second or successive habeas corpus petition under § 2254 has not been presented in

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a prior petition, such claim must be dismissed, unless: (1) the claim relies on a new rule of

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constitutional law, made retroactive to cases on collateral review by the Supreme Court, or (2) the

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factual predicate for the claim could not have been discovered previously through the exercise of

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due diligence, and the facts underlying the claim would be sufficient to establish by clear and

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convincing evidence that, but for constitutional error, no reasonable fact-finder would have found

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the petitioner guilty of the underlying offense. 28 U.S.C. § 2244(b)(2). It is unclear whether any

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of Petitioner’s claims satisfy either of the two exceptions set forth in Section 2244(b)(2).

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Regardless, even if a second or successive habeas petition is permitted under Section

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2244(b)(2), a petitioner must first obtain from the Court of Appeals an order authorizing the
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district court to consider the second or successive petition. Id. § 2244(b)(3)(A). Petitioner has not

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presented an order from the Ninth Circuit Court of Appeals authorizing this Court to consider this

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successive petition. Accordingly, this Court must dismiss the instant petition in its entirety. Id.

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This action is therefore DISMISSED without prejudice to Petitioner filing a new petition if and

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when he obtains the necessary order from the Ninth Circuit.
In light of the fact that this action must be dismissed under Section 2244(b)(3), the court

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need not decide whether this action also must be dismissed as untimely or procedurally barred.

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Accordingly, the Court DENIES Respondent’s motion to dismiss (Docket No. 12) as moot. The

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denial of the motion to dismiss is without prejudice to Respondent moving to dismiss as untimely

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or procedurally barred any future petition that Petitioner might file.
CONCLUSION

United States District Court
Northern District of California

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For the reasons stated above, the petition for a writ of habeas corpus is DISMISSED as

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second or successive. Respondent’s motion to dismiss (Docket No. 12) is DENIED as moot.
The federal rules governing habeas cases brought by state prisoners require a district court

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that issues an order denying a habeas petition to either grant or deny therein a certificate of

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appealability. See Rules Governing Habeas Corpus Cases Under Section 2254, Rule 11(a). A

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judge shall grant a certificate of appealability “only if the applicant has made a substantial

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showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the certificate must

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indicate which issues satisfy this standard. Id. § 2253(c)(3). “Where a district court has rejected

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the constitutional claims on the merits, the showing required to satisfy § 2253(c) is

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straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district

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court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

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473, 484 (2000). Here, Petitioner has not made such a showing, and, accordingly, a certificate of

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appealability will be denied.

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The Clerk shall enter judgment in favor of Respondent and close the file.

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IT IS SO ORDERED.

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Dated: 4/29/2016
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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