Hall L. Johnson, III v. B. Kates

Case 2:22-cv-04455-RGK-PD Document 12 Filed 08/30/22 Page 1 of 5 Page ID #:65 [7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 HALL L. JOHNSON, III, Case No. 2:22-CV-04455-RGK-PD 12 Petitioner, ORDER TO SHOW CAUSE RE: DISMISSAL OF HABEAS 13 v. PETITION 14 B. CATES, 15 Respondent. [16] On June 29, 2022, Petitioner Hall L. Johnson, III, filed a Petition under [17] 28 U.S.C. § 2254 challenging his 2017 state convictions for multiple sex [18] crimes against a minor. The Court issues this Order to Show Cause directed [19] to Petitioner because the face of the Petition suggests that it is an [20] unauthorized second or successive petition. [21] I. Procedural History [22] A Los Angeles County Superior Court jury convicted Petitioner of one [23] count of human trafficking of a minor for a commercial sex act, two counts of [24] committing a lewd act upon a child, one count of kidnapping for child [25] molestation, and two counts of forcible rape, in violation of California Penal [26] Code sections 236.1(c)(l), 288(a), 207(b), and 261(a)(2). He was sentenced to [28] Case 2:22-cv-04455-RGK-PD Document 12 Filed 08/30/22 Page 2 of 5 Page ID #:66 1 31 years and four months to life in state prison. [See Pet. at 2]; 1 Johnson v. 2 Sullivan, No. CV 20-1198-RGK (PD) (filed Feb. 6, 2020) (“Johnson II”), Dkt. 3 No. 15-1 at 10-14. He appealed, and the California Court of Appeal vacated 4 the sentence and remanded to the trial court for resentencing but otherwise 5 affirmed the judgment. 6 On remand, Petitioner was resentenced to 40 years and eight months in 7 state prison. He again appealed, the California Court of Appeal affirmed, and 8 the California Supreme Court denied review. See Johnson II, Dkt. Nos. 15-2, 9 15-5 through 15-7. 10 After the court of appeal vacated his initial sentence, Petitioner filed an 11 unsuccessful state habeas petition in the California Court of Appeal and a 12 premature federal habeas petition in this Court. See Johnson II, Dkt. Nos. 13 15-3, 15-4; see also Johson v. Sullivan, No. CV 19-232-RGK (JDE) (filed Jan. 14 10, 2019) (“Johnson I”). He then filed a habeas petition in the California Supreme Court, which denied it on January 22, 2020. See Cal. App. Cts. Case [15] Info., http://appellatecases.courtinfo.ca.gov/ (search for “Hall” with “Johnson” [16] in supreme court) (last visited Aug. 29, 2022). [17] On February 6, 2020, Petitioner filed a second habeas petition in this [18] Court, asserting three claims challenging his 2017 convictions. On June 15, [19] 2021, the District Judge dismissed the petition on its merits with prejudice. [20] See Johnson II, Dkt. Nos. 1, 49, 54, 55. Petitioner then requested a certificate [21] of appealability in the Ninth Circuit Court of Appeals, which denied it on [22] March 30, 2022. He moved for reconsideration, and the Ninth Circuit denied [23] the motion on April 28, 2022. See id., Dkt Nos. 64, 65. [24] Meanwhile, on October 18, 2021, Petitioner filed a habeas petition in [25] the California Court of Appeal, which denied it on January 20, 2022. [See Pet. [27] 1 The Court uses the page numbers inserted on the pleadings by the electronic [28] docketing system. [2] Case 2:22-cv-04455-RGK-PD Document 12 Filed 08/30/22 Page 3 of 5 Page ID #:67 1 at 3-4]; Cal. App. Cts. Case Info., http://appellatecases.courtinfo.ca.gov/ 2 (search for “Hall” with “Johnson” in court of appeal, 2d dist.) (last visited Aug. 3 29, 2022). He then filed a habeas petition in the California Supreme Court, 4 which denied it on June 15, 2022. [See Pet. at 4]; Cal. App. Cts. Case Info., 5 http://appellatecases.courtinfo.ca.gov/ (search for “Hall” with “Johnson” in 6 supreme court) (last visited Aug. 29, 2022). 7 On June 29, 2022, he filed the instant Petition. 8 II. Discussion 9 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 10 “creates a ‘gatekeeping’ mechanism for the consideration of second or 11 successive applications in district court.” Felker v. Turpin, 518 U.S. 651 , 657 12 (1996); Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998). Under this 13 procedure, “[a]n individual seeking to file a ‘second or successive’ application 14 must move in the appropriate court of appeals for an order directing the district court to consider his application.” Martinez-Villareal, 523 U.S. at 641 . [15] Thereafter, the appellate court “may authorize the filing of a second or [16] successive application only if it determines that the application makes a [17] prima facie showing that the application satisfies the requirements of” the [18] AEDPA. 28 U.S.C. § 2244 (b)(3)(C); Morales v. Ornoski, 439 F.3d 529, 531 (9th [19] Cir. 2006). If, however, a petitioner files a second petition without obtaining [20] authorization from the appropriate court of appeals to do so, the district court [21] is “without jurisdiction to entertain [the second petition].” Burton v. Stewart, [22] 549 U.S. 147, 157 (2007). [23] Here, Petitioner already has filed a federal habeas petition challenging [24] his 2017 convictions, and that petition was denied with prejudice on its [25] merits. See Johnson II, Dkt. Nos. 1, 49, 54, 55. He does not allege that he [26] obtained the requisite authorization from the Ninth Circuit Court of Appeals [27] to file a second or successive petition in this Court challenging his 2017 [3] Case 2:22-cv-04455-RGK-PD Document 12 Filed 08/30/22 Page 4 of 5 Page ID #:68 1 convictions. The current Petition, therefore, appears to be an unauthorized 2 second or successive petition. See Gonzalez v. Crosby, 545 U.S. 524 , 532 3 (2005) (explaining that petition is successive within meaning of § 2244(b) 4 where it “seeks to add a new ground for relief” or “if it attacks the federal 5 court’s previous resolution of a claim on the merits”) (emphasis in original); 6 Carranza v. Hill, No. 2:20-04118 CAS (ADS), 2020 WL 8970749 , *2 (C.D. Cal. 7 May 12, 2020) (holding that “dismissal with prejudice constituted a decision 8 on the merits and renders subsequent petitions successive under AEDPA”) 9 (citing McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir. 2009)). 10 Moreover, that Petitioner alleges that the Petition’s first claim for relief 11 is based on “newly discovered evidence” [see Pet. at 5] is not sufficient to 12 overcome the bar on unauthorized second or successive petitions. To be sure, 13 “[a] habeas petition is second or successive only if it raises claims that were or 14 could have been adjudicated on the merits.” McNabb, 576 F.3d at 1029 . But Petitioner fails to explain why any of the Petition’s claims could not have been [15] raised in his prior federal habeas petition. What’s more, both the Petition’s [16] claims concern appellate counsel’s failure to challenge on appeal the [17] prosecutor’s pretrial actions of amending the information to add counts [18] against Petitioner. [See Pet. at 5-11.] Although Petitioner claims to have [19] unearthed a “newly discovered ‘minute order’’’ that purportedly supports his [20] claims, he cites to the trial transcript to show the order’s existence. [See Pet. [21] at 9, 24-28.] In any event, he undoubtedly knew that he was charged with the [22] crimes of which he was convicted long before he filed his previous federal [23] habeas petition. Thus, he could have asserted his current claims when he [24] filed that petition, rather than attempting to do so now. [25] Accordingly, it appears that the Court lacks jurisdiction to consider the [26] Petition. [4] Case 2:22-cv-04455-RGK-PD Document 12 Filed 08/30/22 Page5of5 Page ID #:69 l III. Conclusion 2 Petitioner is ordered show cause as to why this action should not be 3 || dismissed without prejudice as an unauthorized second or successive petition 4 || no later than September 30, 2022. If Petitioner alleges that he has 5 || obtained authorization from the Ninth Circuit to file a second or successive 6 || petition challenging his 2017 convictions, he must lodge with the Court the 7 || order from the Ninth Circuit authorizing this Petition. Finally, Petitioner is 8 || admonished that if he does not file a response to this Order within the time 9 || allowed, the Court will recommend that the action be dismissed for lack of 10 || jurisdiction and for failure to prosecute. 1] 12 IT IS SO ORDERED. [13] 14 DATED: August 30, 2022. Palisa» Limo oe PATRICIA DONAHUE 17 UNITED STATES MAGISTRATE JUDGE