Lawrie v. Muniz

Filing 40

ORDER: (1) Denying Petition for Writ of Habeas Corpus for Lack of Jurisdiction; and (2) Referring Petition to the Ninth Circuit as Second or Successive. Signed by Judge John A. Houston on 3/6/2017.(All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MATTHEW ALAN LAWRIE,

Case No.: 16cv1656-JAH (DHB)
Petitioner,

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v.

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ORDER (1) DENYING PETITION
FOR WRIT OF HABEAS CORPUS
FOR LACK OF JURISDICTION;
AND (2) REFERRING PETITION TO
THE NINTH CIRCUIT AS SECOND
OR SUCCESSIVE

SCOTT KERNAN, Secretary of the
California Department of Corrections and
Rehabilitation,

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Respondent.

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INTRODUCTION

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This matter comes before the Court on the Report and Recommendation (“R&R”)

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of the Honorable Louisa S. Porter, United States Magistrate Judge, and Petitioner’s

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objections thereto. See Doc. Nos. 35, 38. After careful consideration of the entire record,

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including the R&R and Petitioner’s objections, the instant petition for writ of habeas

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corpus (the “Petition”) is DENIED without prejudice because (1) it is successive; (2)

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Petitioner did not obtain the requisite authorization from the United States Court of Appeals

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for the Ninth Circuit to file a successive petition; and (3) this Court lacks jurisdiction to

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consider it. See Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding that the district court

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should have dismissed the habeas petition at bar for lack of jurisdiction where petitioner

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neither sought nor received authorization from the court of appeals before filing second or
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successive petition). Accordingly, the Court REFERS the Petition to the Ninth Circuit as

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a second or successive petition, pursuant to Ninth Circuit Rule 22-3(a).

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BACKGROUND AND DISCUSSION

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Matthew Alan Lawrie (“Petitioner”) is currently serving a prison term of 50 years to

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life, pursuant to his May 31, 2006 conviction for first degree murder (Cal. Penal Code §

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187(a)), and being found to have personally and intentionally discharged a firearm causing

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death (Cal. Penal Code § 12022.53(d)). See Lodgment No. 4 at 561.

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On May 12, 2010, Petitioner filed his first federal petition for a writ of habeas

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corpus, pursuant to 28 U.S.C. § 2254, claiming his federal constitutional right to due

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process was violated based on the three evidentiary issues raised in the direct appeal. See

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Lodgment No. 18; Lawrie v. Cate, Case No. 10cv1034-DMS-PCL, ECF No. 1 (S.D. Cal.

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May 12, 2010). Specifically, Petitioner argued that the trial court erroneously (1) admitted

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evidence of pretext calls to his cell phone; (2) admitted irrelevant bad character evidence

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in the form of written threats to the victim; and (3) refused to suppress testimony

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identifying Petitioner’s truck at the crime scene near the time of the shooting. Id. On August

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29, 2011, Magistrate Judge Louisa S. Porter issued a report rejecting the claims and

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recommending the first petition be denied with prejudice. See Lodgment No. 18. On

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October 5, 2011, this Court adopted Judge Porter’s report and recommendation, and denied

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Petitioner’s first federal habeas petition. See Lodgment Nos. 19, 20. The Ninth Circuit

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denied a certificate of appealability on October 22, 2012. See Lodgment No. 21.

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On June 6, 2016, Petitioner constructively filed the instant Petition, pursuant to 28

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U.S.C. § 2254, in which he challenges the same conviction as in his prior federal habeas

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petition. See Doc. No. 1. The instant Petition raises four claims that were not presented in

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Petitioner’s prior federal petition. Specifically, Petitioner asserts claims concerning probate

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and paying expert witnesses, which, he argues, blocked his ability to access funds to pay

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an expert. On August 11, 2016 Warden William Muniz (“Respondent”) moved to dismiss

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the Petition, pursuant to Rule 4 of the Rules Governing § 2254 Cases, arguing, inter alia,

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that the Petition is an unauthorized second or successive petition because Petitioner is, for
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a second time, attempting to overturn his conviction, stemming from San Diego County

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Superior Court case SCN 160404, and his first decision was decided on the merits. See

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Doc. No. 16. Indeed, Respondent contends that Petitioner was not entitled to file the instant

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Petition because he failed to obtain leave from the Ninth Circuit Court of Appeals. Thus,

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Respondent maintains that the Petition must be dismissed. Id.

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On December 13, 2016, Judge Porter issued the R&R, recommending that the instant

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Petition be dismissed as successive pursuant to 28 U.S.C. § 2244(b)(3), or untimely

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pursuant to 28 U.S.C. § 2244(d). See Doc. No. 35 at 15. On January 1, 2017, Petitioner

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filed objections to the R&R. See Doc. No. 38. Notably, Petitioner’s objections include

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neither a response nor a denial that his Petition is second or successive under 28 U.S.C. §

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2244(b)(3). See generally id. Instead, Petitioner specifically objects to (1) Judge Porter’s

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untimeliness finding [id. at 8 ¶¶ 23-27]; (2) the Ninth Circuit’s October 22, 2012 denial of

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a certificate of appealability, [id. at 6 ¶¶ 16-27]; and (3) “whether (AEDPA) applies at all

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to [P]etitioner’s case[,]” contending that this Court is required “to ignore the (R and R)

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discussion of the (AEDPA) rules found on p.6 through 11 [of the R&R] because they are

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moot, on the dismissal procedural grounds[,]” [id. at 7-8].

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Ultimately, Petitioner appears to ask the Court to exercise discretion in granting his

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Petition. See generally id. However, this Court is not vested with such discretion. Ninth

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Circuit Rule 22-3(a) states:

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(a) Application. Any petitioner seeking leave to file a second or

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successive 2254 petition or 2255 motion in district court must

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seek leave under 28 U.S.C. §§ 2244 or 2255. An original and five

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copies of the application must be filed with the Clerk of the Court

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of Appeals. No filing fee is required. If a second or successive

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petition or motion, or application for leave to file such a petition

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or motion, is mistakenly submitted to the district court, the

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district court shall refer it to the court of appeals.

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16cv1656-JAH (DHB)

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(Emphasis added). Petitioner’s first federal habeas petition presented claims that the trial

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court erroneously admitted evidence, admitted irrelevant bad character evidence, and

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refused to suppress testimony identifying Petitioner’s vehicle at the crime scene near the

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time of the shooting. See Lodgment Nos. 19, 20. That petition was denied on the merits,

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dismissed with prejudice, and the Ninth Circuit subsequently denied a certificate of

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appealability. Lodgment Nos. 18, 21. Now, in the instant Petition, Petitioner raises four

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additional claims arising from the same criminal matter, attacking the same conviction. See

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Doc. No. 1. The Court finds that the instant Petition is a “prime example” of a second or

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successive habeas petition. See Hill v. Alaska, 297 F.3d 895, 899 (9th Cir. 2002) (holding

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that a second-in-time habeas petition which attacks a prisoner’s underlying conviction for

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the second time is a “prime example of a ‘second or successive’ petition under § 2244(b).”).

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Consequently, 28 U.S.C. § 2244(b)(3) required Petitioner to move the Ninth Circuit Court

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of Appeals for an order authorizing this Court to consider his June, 2016 Petition. There is

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no indication in the record that Petitioner attempted to comply with the requirements of

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this section.

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Accordingly, the Court finds that the instant Petition should be (1) treated as “second

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or successive;” (2) DENIED for lack of jurisdiction; and (3) REFERRED in accordance

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with Ninth Circuit Rule 22-3(a). See 28 U.S.C. § 2244(b); see also Burton, 549 U.S. at 153.

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CONCLUSION AND ORDER

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1.

The Petition is DENIED and this action is DISMISSED without prejudice

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because it is successive, Petitioner did not obtain the requisite authorization

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from the Court of Appeals to file a successive petition, and this Court lacks

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jurisdiction to consider it.

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2.

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The Clerk of the Court shall refer the Petition to the United States Court of
Appeals for the Ninth Circuit, pursuant to Ninth Circuit Rule 22–3(a).

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//

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//
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The Clerk shall serve copies of this Order, the United States Magistrate

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Judge’s Report and Recommendation, and the Judgment herein on Petitioner

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and on any counsel for Respondent.

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IT IS SO ORDERED.

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DATED: March 6, 2017
_________________________________
JOHN A. HOUSTON
United States District Judge

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