Briseno v. Fisher

Filing 9

ORDER DISMISSING CASE AND DENYING CERTIFICATE OF APPEALABILITY. MOTION for Leave to Proceed in forma pauperis 7 is granted. ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 8/1/17. (Certificate of Service attached) (kcS, COURT STAFF) (Filed on 8/1/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL W. BRISENO,

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Petitioner,

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v.

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RAYTHEL FISHER,

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Respondent.

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United States District Court
Northern District of California

Case No. 17-cv-02580-PJH
ORDER DISMISSING CASE AND
DENYING CERTIFICATE OF
APPEALABILITY
Re: Dkt. No. 7

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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 (Docket No. 1) and then a second petition (Docket

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No. 5). The court has reviewed both petitions. Petitioner challenges a conviction in

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Santa Clara County, which is in this district, so venue is proper here. See 28 U.S.C. §

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2241(d). He has also filed a motion to proceed in forma pauperis. Petitioner previously

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

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second or 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 denying petitioner’s claims that: (1) the

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court and trial counsel failed to inform him of the statutory mandatory minimum

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sentences; and (2) the court made an illusory promise of a reward at sentencing in

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exchange for his plea. People v. Briseno, 2015 WL 6392174 (Cal. Ct. App. 2015). The

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California Supreme Court denied review. People v. Briseno, No. S230847 (Cal. Feb. 17,

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2016). Petitioner also filed a state habeas petition in the Superior Court for the County of

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Santa Clara, In re Briseno, No. C9886818, which the superior court denied by order filed

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October 11, 2016. Docket no. 1 at 17-22 in Briseno v. Fisher, No. 16-cv-6618 PJH. He

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filed a second state habeas petition in the Superior Court for the County of Santa Clara,

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In re Briseno, C9886818, which the superior court denied by order filed March 14, 2017.

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Docket No. 1 at 7-14. Petitioner filed a new federal habeas petition that was dismissed

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as successive on January 12, 2017, and he was informed that he needed to obtain

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permission from the Ninth Circuit to pursue a successive petition. Docket No. 6 in

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Briseno v. Fisher, No. 16-cv-6618 PJH. Petitioner has filed a new federal habeas petition

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in this court.
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Petitioner does not present specific claims in either petition. He discusses the

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illusory promises by the trial court, lying by police investigators and his lack of intent to

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commit the crimes. Docket No. 1 at 3-6. He also states that the trial court would not

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provide information regarding his potential sentence and the trial court made false

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promises. Docket No. 5 at 5.

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All of these claims concern the same conviction underlying his prior habeas

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

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petition an unauthorized “second or successive” habeas petition under 28 U.S.C. § 2244.

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See Goodrum v. Busby, 824 F.3d 1188, 1194 (9th Cir. 2016) (“a petition will not be
deemed second or successive unless, at a minimum, an earlier-filed petition has been

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United States District Court
Northern District of California

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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 received authorization from the Ninth Circuit to proceed

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with this second or successive petition pursuant to 28 U.S.C. § 2244(b)(3), this case is

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DISMISSED. Court records indicate that petitioner filed a request to present a second or

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successive petition with the Ninth Circuit on May 1, 2017. See Briseno v. Fisher, No. 17-

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71274. The Ninth Circuit has not yet ruled on the request. The filing of this petition is

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premature. Petitioner may proceed with a new petition if he receives authorization from

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the Ninth Circuit.
CONCLUSION

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Leave to proceed in form pauperis (Docket No. 7) is GRANTED.

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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: August 1, 2017

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PHYLLIS J. HAMILTON
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL W. BRISENO,

Case No. 17-cv-02580-PJH

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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RAYTHEL FISHER,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on August 1, 2017, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Michael W. Briseno ID: P79941
C4-31-02 up
Valley State Prison
P.O. Box 92
Chowchilla, CA 93610

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Dated: August 1, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Kelly Collins, Deputy Clerk to the
Honorable PHYLLIS J. HAMILTON

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