JP Parnell v. D. Cueva

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 J. P. PARNELL, Case No. CV 20-07422-DMG (AFM) 12 Petitioner, ORDER SUMMARILY DISMISSING 13 v. PETITION FOR WRIT OF HABEAS 14 CORPUS FOR LACK OF SUBJECT D. CUEVA, Warden, MATTER JURISDICTION 15 Respondent. [16] 17 Petitioner, a state prisoner, filed this petition challenging his 1990 conviction 18 in the Los Angeles County Superior Court. [Doc. # 1.] For the following reasons, 19 the petition is subject to summary dismissal. See Rule 4 of the Rules Governing 20 Section 2254 Cases in the United States District Courts. 21 BACKGROUND 22 In 1990, Petitioner was convicted of murder and attempted robbery. He was 23 sentenced to state prison for a term of life without parole. The California Court of 24 Appeal affirmed his conviction on direct review, and the California Supreme Court 25 denied his petition for review. His petitions for a writ of habeas corpus were denied 26 by the state courts. [Doc. # 1.] 27 In 1997, Petitioner filed a petition for a writ of habeas corpus in the Central 28 District of California challenging his 1990 conviction. See Case No. CV 97-057591 MRP(FFM). That petition originally was dismissed as untimely. Petitioner 2 successfully moved to vacate the dismissal, however, based upon new authority from 3 the Ninth Circuit. Consequently, the Court addressed the merits of Petitioner’s eight 4 claims for relief. On July 21, 2011, after concluding that Petitioner was not entitled 5 to relief, judgment was entered denying the petition and dismissing the action with 6 prejudice. Petitioner’s requests for a certificate of appealability were denied by this 7 Court and by the Ninth Circuit. In 2019, Petitioner filed a “motion for 8 reconsideration” in the 1997 case. That motion was denied on the ground that it was 9 a disguised second or successive habeas corpus petition. [See Doc. ## 109, 118, 119, 10 127, 131 in Case No. CV 97-05759-MRP(FFM).) 11 On August 11, 2020, Petitioner filed the present petition. While the petition 12 indicates that it challenges Petitioner’s 1990 conviction [Doc. # 1 at 1], the grounds 13 for relief focus upon the adjudication of his petition in Case No. CV 97-0575914 MRP(FFM) (“the prior habeas corpus action”). Specifically, Petitioner alleges that 15 in the prior habeas corpus action: (1) the Court “muddled facts” and “injected bias” 16 in its rulings, including its order substituting the respondent, reflecting “continuing 17 patterns of disenfranchisement and abuse under the law”; (2) the Court failed to 18 adhere to stare decisis, causing the court to “reverse itself”; (3) in June 2010, the 19 Court abrogated federal law when it refused to allow petitioner to amend his petition; 20 and (4) the Court abrogated Supreme Court law when it “championed the cause of 21 Respondent Attorney General” and denied Petitioner’s petition on the merits. [Doc. 22 # 1 at 4-5.] 23 DISCUSSION 24 A. Petitioner Cannot Proceed Under 28 U.S.C. § 2254 25 As noted above, the petition does not include any allegations directly 26 challenging the validity of Petitioner’s state court conviction. Nevertheless, 27 Petitioner used the form for § 2254 petitions, and he indicates that he intends to 28 challenge his 1990 conviction in the Los Angeles Superior Court. [Doc. # 1 at 1.] 1 “Before a second or successive application permitted by this section is filed in 2 the district court, the applicant shall move in the appropriate court of appeals for an 3 order authorizing the district court to consider the application.” 28 U.S.C. 4 § 2244(b)(3)(A). Absent authorization from the Court of Appeals, this Court lacks 5 jurisdiction over a successive petition. See Magwood v. Patterson, 561 U.S. 320 , 6 330-331 (2010); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). Because 7 Petitioner has not obtained authorization from the Ninth Circuit to file this second or 8 successive petition, this Court is without jurisdiction to entertain it. See Burton v. 9 Stewart, 549 U.S. 147, 153 (2007). Furthermore, to the extent that Petitioner might 10 contend that his petition meets an exception to the bar on successive petitions, his 11 argument must first be presented to the Court of Appeals. 12 B. Petitioner Cannot Proceed By Way Of The All Writs Act. 13 Petitioner indicates that he “seeks to come under 28 U.S.C. §1651 , because 14 more than one endeavor filed under §2254, has shown that the Central District Court 15 is determined to affirm its past rulings. As such, §2254 proves ‘inadequate or 16 ineffective’ as a remedy. . . .” [Doc. # 1 at 8.] 17 Petitioner’s attempt to circumvent the law precluding successive petitions by 18 invoking 28 U.S.C. § 1651 (“the All Writs Act”) is unavailing. The All Writs Act 19 provides that “all courts ... may issue all writs necessary or appropriate in aid of their 20 respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. 21 § 1651(a). In addition, “[a]n alternative writ or rule nisi may be issued by a justice 22 or judge of a court which has jurisdiction.” 28 U.S.C. § 1651 (b). Critically, the All 23 Writs Act is not itself a source of jurisdiction. See Chavez v. Superior Court, 194 F. 24 Supp. 2d 1037, 1039 (C.D. Cal. 2002). While in extraordinary circumstances coram 25 nobis relief may be available in post-conviction proceedings in federal criminal 26 cases, see Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987), it is not 27 available in federal court to attack a state court conviction. See Casas-Castrillon v. 28 Warden, 265 F. App’x 639, 640 (9th Cir. 2008); Siddiqi v. Supreme Court of 1 || California, 2019 WL 1045130 , at *1 (C.D. Cal. Mar. 4, 2019). Thus, Petitioner’s 2 || citation to 28 U.S.C. § 1651 is insufficient to confer jurisdiction over his petition. 3 For the foregoing reasons, IT IS ORDERED that Judgment be entered 4 | dismissing this petition for lack of jurisdiction. Petitioner’s request to proceed in 5 || forma pauperis is DENIED [Doc. # 6]. [6] 7 || DATED: January 4, 2021 Lote In. Kee 9 NE Fn Fe DOLLY M. GEE 10 UNITED STATES DISTRICT JUDGE