Lamons v. Haws

Filing 12

ORDER GRANTING MOTION TO DISMISS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Jeremy Fogel on 6/17/11. (dlm, COURT STAFF) (Filed on 7/21/2011)

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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JONATHAN H. LAMONS,
Petitioner,

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vs.

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HAWS, Warden,
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Respondent.
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No. C 10-00958 JF (PR)
ORDER GRANTING MOTION TO
DISMISS; DENYING CERTIFICATE
OF APPEALABILITY

(Docket No. 9.)

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Petitioner, a California inmate proceeding pro se, seeks a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction.

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Respondent has moved to dismiss the petition as successive. (Docket No. 9.)

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Petitioner filed opposition, and Respondent filed a reply. For the reasons discussed

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below, the Court grants Respondent’s motion to dismiss.

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BACKGROUND
In April 1990, Petitioner pleaded guilty in Alameda County Superior Court to

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first degree murder. (Pet. 2.) Petitioner was sentenced to 26 years-to-life in state

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prison. (Id.) Petitioner did not appeal the conviction. (Id. at 3.) Petitioner most
Order Granting Motion to Dismiss
P:\PRO-SE\SJ.JF\HC.10\Lamons00958_grant-mtd (succ).wpd

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recently filed state habeas petitions raising the claims in the instant petition in 2009,

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with the California Supreme Court denying review on December 17, 2009. (Id. at

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5.) Petitioner filed the instant federal petition on March 5, 2010.

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DISCUSSION

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A claim presented in a second or successive petition under 28 U.S.C. § 2254

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§ 2244(b)(1); Babbitt v. Woodford, 177 F.3d 744, 745-46 (9th Cir. 1999). A new

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factual basis for a claim previously presented is not sufficient to prevent it from

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falling under this section. See id. at 746 (ineffective assistance claim based on

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For the Northern District of California

that was presented in a prior petition must be dismissed. See 28 U.S.C.

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United States District Court

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counsel’s alcohol abuse successive of claim that counsel failed to present Post

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Traumatic Stress Disorder claim). Before a second or successive petition may be

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filed in the district court, the petitioner must first obtain an order from the court of

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appeals authorizing the district court to consider the petition. See 28 U.S.C. §

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2244(b)(3)(A). Accordingly, a district court must dismiss any new claims raised in a

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successive petition unless the petitioner received an order from the court of appeals

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authorizing the district court to consider the petition. See id. § 2244(b)(2).
Respondent contends that Petitioner filed a habeas petition in this Court, Case

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No. C 93-1734 CAL, on May 11, 1993, which the Court denied on the merits on

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August 8, 1994. (Mot. to Dismiss at 2, Ex. A.) Petitioner appealed to the Ninth

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Circuit Court of Appeals, which affirmed the Court’s denial of habeas relief on April

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3, 2002. (Id., Ex. B.) Respondent also argues that Petitioner filed at least one other

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federal habeas petition, Case No. C 95-0300 CAL, addressing his murder conviction.

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(Id.)

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In opposition, Petitioner does not deny that he filed previous federal habeas

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petitions as shown by Respondent. Rather, he asserts that the requirement of 28

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U.S.C. § 2244(b)(3)(A) does not apply to him because he filed his first federal

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habeas petition before the 1996 passage of the Antiterrorism and Effective Death
Order Granting Motion to Dismiss
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Penalty Act (“AEDPA”). (Oppo. at 4; Docket No. 10.) In reply, Respondent argues

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that the instant petition is a successive petition filed after AEDPA was enacted, and

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is therefore subject to AEDPA’s second and successive provisions. (Reply at 2;

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Docket No. 11.)

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AEDPA does not provide an effective date for its general habeas provisions,

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see Williams v. Calderon, 83 F.3d 281, 286 n.2 (9th Cir. 1996), and the Ninth

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Circuit has found that § 2244 does not apply to second or successive petitions

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pending in the district court before the Act was signed into law. See id. at 285-86.1

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However, as Respondent correctly points out, the instant successive petition was
filed after AEDPA was enacted. Accordingly, the second and successive provisions

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For the Northern District of California

United States District Court

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of AEDPA is applicable under United States v. Villa-Gonzalez, 208 F.3d 1160, 1163

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(9th Cir. 2000), such that an authorization order from the court of appeals is

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necessary before this Court may consider the instant successive petition. See 28

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U.S.C. § 2244(b)(2).

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The instant petition challenges the same sentence as the previous petition and

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Petitioner has not presented an order from the Ninth Circuit Court of Appeals

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authorizing this Court to consider any new claims. See 28 U.S.C. § 2244(b)(3)(A).

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It is undisputed that Petitioner’s first petition was adjudicated on the merits in an

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order denying the petition on August 8, 1994. See supra at 2. Accordingly, this

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Court must dismiss the instant petition in its entirety.

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CONCLUSION

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For the foregoing reasons, Respondent’s motion to dismiss the petition as
successive, (Docket No. 9), is GRANTED. The instant petition is DISMISSED as a

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The Ninth Circuit has held that Williams “assume[d], without deciding” that
AEDPA did not apply to new claims in a pre-AEDPA petition that were exhausted
after the enactment of that act, “because even without giving him the benefit of the
more favorable pre-enactment law, we deny his claims.” Stankewitz v. Woodford,
365 F.3d 706, 713 (9th Cir. 2004) (citation omitted).
Order Granting Motion to Dismiss
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successive petition pursuant to § 2244 (b)(1).
No certificate of appealability is warranted in this case. See Rule 11(a) of the

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Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district court to

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rule on certificate of appealability in same order that denies petition). Petitioner has

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not shown “that jurists of reason would find it debatable whether the petition states a

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valid claim of the denial of a constitutional right and that jurists of reason would find

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it debatable whether the district court was correct in its procedural ruling.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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This order terminates Docket No. 9.

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DATED:

6/17/11

JEREMY FOGEL
United States District Judge

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Order Granting Motion to Dismiss
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

JONATHAN LAMONS,

Case Number: CV10-00958 JF

Petitioner,

CERTIFICATE OF SERVICE

v.
HAWS, Warden,
Respondent.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
7/21/11
That on
, 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.

Jonathan H. Lamons E-60677
CA State Prison-Los Angeles County
P.O. Box 4610
44750 60th Street West
Lancaster, CA 93536-7620
Dated:

7/21/11
Richard W. Wieking, Clerk