Kevin Curtis Cannon v. San Bernardino County

[8] UNITED STATES DISTRICT COURT [9] CENTRAL DISTRICT OF CALIFORNIA [11] ) 12 KEVIN CURTIS CANNON, ) Case No. EDCV 20-1429-AB (JEM) ) 13 Petitioner, ) ) ORDER SUMMARILY DISMISSING 14 v. ) PETITION FOR LACK OF JURISDICTION ) AND DENYING A CERTIFICATE OF 15 SAN BERNARDINO COUNTY, ) APPEALABILITY ) 16 Respondent. ) ) [17] 18 On July 17, 2020, Kevin Curtis Cannon (“Petitioner”) filed a petition for writ of habeas 19 corpus by a person in state custody pursuant to 28 U.S.C. § 2254 (“Petition”). Petitioner 20 challenges his 2015 conviction in San Bernardino County Superior Court Case No. 21 FSB1305495. (Petition at 2.) 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, Kevin Curtis Cannon v. Neil 25 McDowell, Case No. EDCV 18-2661-AB (JEM) (“Cannon I”). 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 27 in other cases, as well as the records of an inferior court in other cases.”) (citations omitted); [28] 1 On December 26, 2018, in Cannon I, Petitioner filed a petition for a writ of habeas 2 corpus pursuant to 28 U.S.C. § 2254 . Petitioner challenged his 2015 conviction in San 3 Bernardino County Superior Court Case No. FSB1305495. (Cannon I, Dkt. No. 1.) On 4 October 23, 2019, the Magistrate Judge issued a Report and Recommendation, 5 recommending that the petition in Cannon I be denied on the merits and the action be 6 dismissed with prejudice. (Id., Dkt. No. 17.) On February 5, 2020, the Court issued an Order 7 Accepting Findings and Recommendations of United States Magistrate Judge, an Order 8 Denying Certificate of Appealability, and a Judgment dismissing the action with prejudice. (Id., 9 Dkt. Nos. 25-27.) On February 24, 2020, Petitioner filed a notice of appeal. (Id., Dkt. No. 28.) 10 The appeal is still pending in the Ninth Circuit. 11 On July 17, 2020, Petitioner filed the instant Petition, in which he challenges the same 12 2015 conviction at issue in Cannon I. 13 DISCUSSION 14 I. DUTY TO SCREEN 15 This Court has a duty to screen habeas corpus petitions. See Rules Governing § 2254 16 Cases in the United States District Courts, Rule 4 Advisory Committee Notes. Rule 4 requires 17 a district court to examine a habeas corpus petition, and if it plainly appears from the face of 18 the petition and any annexed exhibits that the petitioner is not entitled to relief, the judge shall 19 make an order for summary dismissal of the petition. Id.; see also Local Rule 72-3.2. The 20 notes to Rule 4 state: “‘a dismissal may be called for on procedural grounds, which may avoid 21 burdening the respondent with the necessity of filing an answer on the substantive merits of 22 the petition.’” See Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998); White v. Lewis, [23] 874 F.2d 599, 602-03 (9th Cir. 1989). 24 /// 25 /// 26 /// 27 /// [28] 1 II. THE PETITION IS SUBJECT TO SUMMARY DISMISSAL AS AN UNAUTHORIZED 2 SECOND OR SUCCESSIVE PETITION 3 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides, in 4 pertinent part: 5 (b)(1) A claim presented in a second or successive habeas corpus 6 application under section 2254 that was presented in a prior application 7 shall be dismissed. 8 (2) A claim presented in a second or successive habeas corpus 9 application under section 2254 that was not presented in a prior 10 application shall be dismissed unless – 11 (A) the applicant shows that the claim relies on a new rule of 12 constitutional law, made retroactive to cases on collateral review by 13 the Supreme Court, that was previously unavailable; or 14 (B)(i) the factual predicate for the claim could not have been 15 discovered previously through the exercise of due diligence; and [¶] 16 (ii) the facts underlying the claim, if proven and viewed in light of 17 the evidence as a whole, would be sufficient to establish by clear 18 and convincing evidence that, but for constitutional error, no 19 reasonable factfinder would have found the applicant guilty of the 20 underlying offense. 21 (3)(A) Before a second or successive application permitted by this 22 section is filed in the district court, the applicant shall move in the 23 appropriate court of appeals for an order authorizing the district court to 24 consider the application. [25] 28 U.S.C. § 2244 (b)(1)-(3)(A); see also Rule 9 of the Rules Governing § 2254 Cases in the 26 United States District Courts. 27 A district court does not have jurisdiction to consider a second or successive petition [28] 1 (per curiam); see also Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) 2 (“When the AEDPA is in play, the district court may not, in the absence of proper authorization 3 from the court of appeals, consider a second or successive habeas application.”) (citation and 4 quotation marks omitted). 5 The instant Petition is a second or successive petition challenging the same conviction 6 at issue in Cannon I, which was adjudicated on the merits. See McNabb, 576 F.3d at 1029. 7 There is no indication in the record that Petitioner has obtained permission from the Ninth 8 Circuit Court of Appeals to file a second or successive petition.1 This Court, therefore, lacks 9 jurisdiction over the Petition under 28 U.S.C. § 2244 (b)(3). See Burton, 549 U.S. at 152. 10 Accordingly, the Court will dismiss the Petition without prejudice to Petitioner filing a 11 new action if he obtains permission from the Ninth Circuit to file a second or successive 12 petition.2 13 CERTIFICATE OF APPEALABILITY 14 Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court “must issue 15 or deny a certificate of appealability when it enters a final order adverse to the applicant.” 16 The Court has found that the Petition should be dismissed without prejudice as an 17 unauthorized second or successive petition. For the reasons stated above, the Court [19] 1 Ninth Circuit Rule 22-3(a) provides that “if an application for authorization to file a second or 20 successive section 2254 petition . . . is mistakenly submitted to the district court, the district court shall refer it to the court of appeals.” Rule 22-3(a) also permits the district court to refer a second 21 or successive 2254 petition to the Ninth Circuit in the interests of justice. In this case, there is no indication that the instant Petition is actually an application for authorization to file a second or 22 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 [23] Circuit under Rule 22-3(a) because it is Petitioner’s second successive habeas petition, and he 24 has been advised previously of the requirement to seek the Ninth Circuit’s permission prior to filing another habeas petition challenging his state court conviction. If Petitioner seeks authorization 25 to file a successive habeas petition, he should submit his application directly to the Ninth Circuit Court of Appeals in compliance with Ninth Circuit Rule 22-3. [26] 2 If Petitioner obtains permission to file a second petition, he should file a new petition for writ [27] 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 1 | concludes that Petitioner has not made a substantial showing of the denial of a constitutional 2|| right, as is required to support the issuance of a certificate of appealability. See 28 U.S.C. 3|| § 2253(c)(2). 4 ORDER 5 IT IS HEREBY ORDERED that: (1) the Petition is dismissed without prejudice; and 6] (2) a certificate of appealability is denied. (nd 8|| DATED: July 27, 2020 9 UNITED STATES DISTRICT JUDGE