Jamaal D. Thomas v. Raybon Johnson

Case 2:22-cv-02131-CAS-JEM Document 4 Filed 04/06/22 Page 1 of 4 Page ID #:47 [1] JS-6 [8] UNITED STATES DISTRICT COURT [9] CENTRAL DISTRICT OF CALIFORNIA [11] ) 12 JAMAAL D. THOMAS, ) Case No. CV 22-2131-CAS (JEM) ) 13 Petitioner, ) ) ORDER SUMMARILY DISMISSING 14 v. ) PETITION AND DENYING A CERTIFICATE ) OF APPEALABILITY 15 RAYBON JOHNSON, ) ) 16 Respondent. ) ) [17] 18 On March 31, 2022, Jamaal D. Thomas (“Petitioner”) filed a petition for writ of habeas 19 corpus by a person in state custody pursuant to 28 U.S.C. § 2254 (“Petition” or “Pet.”). 20 Petitioner challenges his 2008 conviction and sentence in Los Angeles County Superior Court 21 Case No. MA037182 (“2008 Conviction”). (Pet. at 2.)1 22 PRIOR PROCEEDINGS 23 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the records in 24 Petitioner’s prior federal habeas corpus action in this Court, Jamaal Thomas v. Terry Virga, 25 Case No. CV 10-6364-CAS (JEM) (“2010 Habeas Action”). See United States v. Wilson, 631 26 F.2d 118, 119 (9th Cir. 1980) (“In particular, a court may take judicial notice of its own records [28] 1 The Court refers to the pages of the Petition as numbered by the CM/ECF system. Case 2:22-cv-02131-CAS-JEM Document 4 Filed 04/06/22 Page 2 of 4 Page ID #:48 1 in other cases, as well as the records of an inferior court in other cases.”) (citations omitted); 2 accord United States v. Howard, 381 F.3d 873 , 876 n.1 (9th Cir. 2004). 3 In the 2010 Habeas Action, Petitioner challenged his 2008 Conviction. (2010 Habeas 4 Action, ECF 1 at 2.) The 2010 Habeas Action was dismissed with prejudice on October 4, 5 2011. (2010 Habeas Action, ECF 32.) The instant Petition, filed March 31, 2022, also 6 challenges the 2008 Conviction. (Pet. at 2.) 7 DISCUSSION 8 I. DUTY TO SCREEN 9 This Court has a duty to screen habeas corpus petitions. See Rules Governing § 2254 10 Cases in the United States District Courts, Rule 4 Advisory Committee Notes. Rule 4 requires 11 a district court to examine a habeas corpus petition, and if it plainly appears from the face of 12 the petition and any annexed exhibits that the petitioner is not entitled to relief, the judge shall 13 make an order for summary dismissal of the petition. Id.; see also Local Rule 72-3.2. The 14 notes to Rule 4 state: “‘a dismissal may be called for on procedural grounds, which may avoid 15 burdening the respondent with the necessity of filing an answer on the substantive merits of 16 the petition.’” See Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998); White v. Lewis, [17] 874 F.2d 599, 602-03 (9th Cir. 1989). 18 II. THE PETITION IS SUBJECT TO SUMMARY DISMISSAL AS AN UNAUTHORIZED 19 SECOND OR SUCCESSIVE PETITION 20 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides, in 21 pertinent part: 22 (b)(1) A claim presented in a second or successive habeas corpus 23 application under section 2254 that was presented in a prior application 24 shall be dismissed. 25 (2) A claim presented in a second or successive habeas corpus 26 application under section 2254 that was not presented in a prior 27 application shall be dismissed unless – [2] Case 2:22-cv-02131-CAS-JEM Document 4 Filed 04/06/22 Page 3 of 4 Page ID #:49 1 (A) the applicant shows that the claim relies on a new rule of 2 constitutional law, made retroactive to cases on collateral review by 3 the Supreme Court, that was previously unavailable; or 4 (B)(i) the factual predicate for the claim could not have been 5 discovered previously through the exercise of due diligence; and [¶] 6 (ii) the facts underlying the claim, if proven and viewed in light of 7 the evidence as a whole, would be sufficient to establish by clear 8 and convincing evidence that, but for constitutional error, no 9 reasonable factfinder would have found the applicant guilty of the 10 underlying offense. 11 (3)(A) Before a second or successive application permitted by this 12 section is filed in the district court, the applicant shall move in the 13 appropriate court of appeals for an order authorizing the district court to 14 consider the application. [15] 28 U.S.C. § 2244 (b)(1)-(3)(A); see also Rule 9 of the Rules Governing § 2254 Cases in the 16 United States District Courts. 17 A district court does not have jurisdiction to consider a second or successive petition 18 absent authorization from the court of appeals. Burton v. Stewart, 549 U.S. 147, 152 (2007) 19 (per curiam); see also Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) 20 (“When the AEDPA is in play, the district court may not, in the absence of proper authorization 21 from the court of appeals, consider a second or successive habeas application.”) (citation and 22 quotation marks omitted). 23 The instant Petition is a second or successive petition challenging the same conviction 24 at issue in the 2010 Habeas Action, which was dismissed with prejudice. See McNabb, 576 25 F.3d at 1029. There is no indication in the record that Petitioner has obtained permission from 26 the Ninth Circuit Court of Appeals to file a second or successive petition.2 This Court, [27] 28 2 Ninth Circuit Rule 22-3(a) provides that “if an application for authorization to file a second or successive section 2254 petition . . . is mistakenly submitted to the district court, the district court [3] Case 2:22-cv-02131-CAS-JEM Document 4 Filed 04/06/22 Page 4of4 Page ID #:50 1 therefore, lacks jurisdiction over the Petition under 28 U.S.C. § 2244 (b)(3). See Burton, 549 2) U.S. at 152. 3 Accordingly, the Court will dismiss the Petition without prejudice to Petitioner filing a 4] new action if he obtains permission from the Ninth Circuit to file a second or successive 5| petition.® 6 CERTIFICATE OF APPEALABILITY 7 Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court “must issue 8|| or deny a certificate of appealability when it enters a final order adverse to the applicant.” 9 The Court has found that the Petition should be dismissed without prejudice as an 10 || unauthorized second or successive petition. For the reasons stated above, the Court 11 concludes that Petitioner has not made a substantial showing of the denial of a constitutional 12 | right, as is required to support the issuance of a certificate of appealability. See 28 U.S.C. 13 | § 2253(c)(2). 14 ORDER 15 IT IS HEREBY ORDERED that: (1) the Petition is dismissed without prejudice; and 16 | (2) a certificate of appealability is denied. [17] Abruape Uh dy 18 | DATED: April 6, 2022 CHRISTINA A. SNYDER 19 UNITED STATES DISTRICT JUDGE [20] shall refer it to the court of appeals.” Rule 22-3(a) also permits the district court to refer a second or successive 2254 petition to the Ninth Circuit in the interests of justice. In this case, there is no 22 indication that the instant Petition is actually an application for authorization to file a second or 23 successive petition that was mistakenly filed here, and the Court declines to construe it as such. The Court also does not find that it is in the interests of justice to refer the Petition to the Ninth 24 || Circuit under Rule 22-3(a) because there does not appear to be any valid basis for allowing a second or successive petition to proceed. If Petitioner seeks authorization to file a successive 25 || habeas petition, he should submit his application directly to the Ninth Circuit Court of Appeals in 26 compliance with Ninth Circuit Rule 22-3. 97 3 If Petitioner obtains permission to file a second petition, he should file a new petition for writ of habeas corpus. He should not file an amended petition in this action or use the case number 28 || from this action because the instant action is being closed today. When Petitioner files a new petition, the Court will give the petition a new case number.