Briseno v. Fisher

Filing 6

ORDER Dismissing Case and Denying Certificate of Appealability. ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 1/12/2017. (pjhlc3, COURT STAFF) (Filed on 1/12/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL WESLEY BRISENO,

v.

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RAYTHEL FISHER,
Respondent.

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United States District Court
Northern District of California

Case No. 16-cv-06618-PJH

Petitioner,

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ORDER DISMISSING CASE AND
DENYING CERTIFICATE OF
APPEALABILITY
Re: Dkt. Nos. 2, 3, 5

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Petitioner, a California prisoner, has filed a pro se petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a conviction in Santa Clara

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County, which is in this district, so venue is proper here. See 28 U.S.C. § 2241(d). He

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has also filed a motion to proceed in forma pauperis. Petitioner previously challenged

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this conviction, as discussed below.1 The instant petition is DISMISSED as a second or

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successive petition pursuant to 28 U.S.C. § 2244(b).
BACKGROUND

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Petitioner pled guilty to thirty-two felony counts of sexual misconduct with children.

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On May 12, 2000, he was sentenced to a determinate term of nine years and four months

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in prison, to be followed by a consecutive indeterminate term of 210 years to life. On July

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11, 2001, the California Court of Appeal dismissed his direct appeal for failure to obtain a

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A more detailed procedural history can be found in People v. Briseno, No. H041820,
2015 WL 6392174, at *1-4 (Cal. Ct. App. Oct. 22, 2015), review denied (Cal. Feb. 17,
2016), cert. denied sub nom. Briseno v. California, 136 S. Ct. 2467 (2016).

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certificate of probable cause, and the California Supreme Court denied review on

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October 10, 2001. Subsequent state habeas petitions were denied.

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Petitioner then filed a federal habeas petition, Case No. C 04-1458 PJH, with the

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following claims: (1) petitioner was denied effective assistance of counsel when his trial

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counsel encouraged him to plead guilty despite knowledge of petitioner’s incompetence;

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(2) petitioner was denied effective assistance of counsel when his trial counsel failed to

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advise him of the consequences of his guilty plea; (3) petitioner was denied due process

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because his guilty plea was neither knowing nor voluntary since his counsel failed to

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advise him of the consequences of his guilty plea; and (4) petitioner was denied effective
assistance of counsel when his trial counsel failed to obtain a certificate of probable

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United States District Court
Northern District of California

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cause. The petition was denied on the merits on September 17, 2007. The court granted

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a certificate of appealability only on the issue whether petitioner was denied effective

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assistance when his trial counsel failed to obtain a certificate of probable cause from the

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trial court, thus precluding him from appealing certain issues.

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On December 20, 2010, the Ninth Circuit affirmed denial of the habeas claim

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asserting ineffective assistance of counsel based on failure to obtain a certificate of

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probable cause to appeal the issue of incompetence, and reversed denial of the claim

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that counsel was ineffective for failing to request a certificate of probable cause on the

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failure of the trial court or counsel to advise petitioner of the mandatory minimum

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sentence that he faced on the counts to which he pled guilty. The Ninth Circuit remanded

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the petition with instructions to “grant the writ of habeas corpus on the issue reversed and

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order the [petitioner] released unless he is afforded an opportunity to appeal that

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conviction within a reasonable time.” Briseno v. Woodford, 413 Fed. Appx. 2, 4-5 (9th

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Cir. Dec. 20, 2010). The court issued the conditional writ of habeas corpus on January

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14, 2011.

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Petitioner then filed a motion to recall the remittitur before the California court of

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appeal, which granted the motion, thereby reinstating his appeal. Because petitioner still

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had not obtained a certificate of probable cause required by Cal. Penal Code § 1237.5,
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the court of appeal dismissed the appeal. People v. Briseno, 203 Cal. App. 4th 1347

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(Cal. Ct. App. 2012), review denied (Cal. May 9, 2012).

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Petitioner, represented by counsel, then sought further relief in this court by filing a

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motion to enforce the judgment in Case No. C 04-1458 PJH. After holding a hearing on

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the motion, the court issued an order on September 18, 2012, denying petitioner’s motion

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to enforce the judgment, which petitioner appealed. On September 12, 2014, a different

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panel of the Ninth Circuit remanded the case back to this court to grant a conditional writ

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“unless the State affords Briseno the opportunity to apply for a certificate of probable

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cause” to appeal his conviction on the ground that his plea was involuntary because the
trial court and counsel failed to inform him of the mandatory minimum sentences. In

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United States District Court
Northern District of California

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accordance with the second order of remand, the court issued a second conditional writ

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of habeas corpus on November 10, 2014.

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The superior court granted petitioner a certificate of probable cause and the court

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of appeal affirmed the judgment on the merits. People v. Briseno, 2015 WL 6392174

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(Cal. Ct. App. 2015). The California Supreme Court denied review. People v. Briseno,

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No. S230847 (Cal. Feb. 17, 2016). Petitioner also filed a state habeas petition in the

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Superior Court for the County of Santa Clara, In re Briseno, No. C9886818, which the

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superior court denied by order filed October 11, 2016. Docket No. 1 at 17-22. Petitioner

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filed the instant petition for writ of habeas corpus on November 15, 2016.

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The instant petition raises the following claims: (1) the plea must be withdrawn

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because petitioner did not have knowledge of the mandatory minimum sentence;

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(2) petitioner never had the opportunity to prove his lack of intent to commit the crimes;

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(3) the prosecutor compromised the plea hearing by describing petitioner’s writings; and

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(4) vindictive sentencing. All of these claims concern the same conviction underlying his

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prior habeas petition which was finally adjudicated in Case No. C 04-1458 PJH, rendering

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the instant petition an unauthorized “second or successive” habeas petition under 28

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U.S.C. § 2244. See Goodrum v. Busby, 824 F.3d 1188, 1194 (9th Cir. 2016) (“a petition

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will not be deemed second or successive unless, at a minimum, an earlier-filed petition

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has been finally adjudicated”) (citing Woods v. Carey, 525 F.3d 886, 889 (9th Cir. 2008)).

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A second or successive habeas petition challenging the same state court

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judgment pursuant to 28 U.S.C. § 2254 may not be filed in federal district court unless the

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petitioner first obtains from the United States Court of Appeals for the Ninth Circuit an

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order authorizing this court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A)

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(““Before a second or successive application permitted by this section is filed in the

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district court, the applicant shall move in the appropriate court of appeals for an order

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authorizing the district court to consider the application.”).

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Because petitioner has not demonstrated that he received authorization from the

United States District Court
Northern District of California

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Ninth Circuit to proceed with this second or successive petition pursuant to 28 U.S.C.

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§ 2244(b)(3), this case is DISMISSED.
CONCLUSION

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Leave to proceed in form pauperis (Docket Nos. 2, 5) is GRANTED.

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2.

The motion to appoint counsel (Docket No. 3) is DENIED because this case

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is dismissed.
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The petition is DISMISSED without prejudice for the reasons stated above.

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Because reasonable jurists would not find the result here debatable, a certificate of

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appealability (“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)

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(standard for COA). The clerk shall close the file.

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IT IS SO ORDERED.
Dated: January 12, 2017
__________________________________
PHYLLIS J. HAMILTON
United States District Judge

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