Rudy Vasquez v. Ralph Diaz

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] ) 11 RUDY VASQUEZ, ) Case No. CV 20-8449-JLS (JPR) 12 Petitioner, ) ) ORDER DISMISSING PETITION FOR 13 v. ) WRIT OF HABEAS CORPUS FOR LACK [14] KATHLEEN ALLISON, CDCR ) ) OF SUBJECT-MATTER JURISDICTION [15] Secretary,1 ) ) Respondent. ) [16] 17 On September 14, 2020, Petitioner, proceeding pro se, filed a 18 Petition for Writ of Habeas Corpus by a Person in State Custody, 19 challenging his 1994 convictions for murder and attempted murder. 20 This is his second federal habeas petition challenging that state21 court judgment. He first filed one on August 23, 2016; the Court 22 denied it on the merits and dismissed it with prejudice on 23 September 10, 2017. See Vasquez v. Spearman, No. CV 16-6333-JLS [24] 25 1 The Petition names Ralph Diaz, the former CDCR Secretary, as Respondent. (See Pet. at 1.) Kathleen Allison is the current CDCR 26 Secretary; she is therefore substituted in as the proper Respondent. See Fed. R. Civ. P. 25(d); R. 2(a), Rs. Governing § [27] 2254 Cases in U.S. Dist. Cts. 28 1 1 (JPR), 2017 WL 4011054 (C.D. Cal. June 26, 2017), accepted by 2017 2 WL 3995501 (C.D. Cal. Sept. 10, 2017). 3 On December 17, 2020, Respondent moved to dismiss the Petition 4 as second or successive as well as premature under Younger v. 5 Harris, 401 U.S. 37, 45-46 (1971). Despite a sua sponte extension 6 of his time to file opposition, Petitioner never opposed the motion 7 or requested another extension of time to do so. For the reasons 8 discussed below, Respondent’s motion to dismiss is granted and the 9 Petition is dismissed without prejudice. 10 PETITIONER’S CLAIMS 11 I. The trial court unconstitutionally imposed restitution 12 without jury findings proven beyond a reasonable doubt. (Pet. at 13 5, 9, 15-16.) 14 II. The trial court unconstitutionally imposed restitution 15 without a hearing on Petitioner’s ability to pay. (Id. at 5, 1716 19.) 17 III. Under Johnson v. United States, 576 U.S. 591, 606 (2015), 18 Petitioner was convicted under an unconstitutionally vague law. 19 (Pet. at 6, 20-22.) 20 BACKGROUND 21 On February 18, 1994, a Los Angeles County Superior Court jury 22 convicted Petitioner of second-degree murder and attempted first23 degree murder. (See Lodged Doc. 1 at 2-3.) The court sentenced 24 him to two consecutive life terms and ordered a restitution fine in 25 the amount of $10,000. (Id. at 3.) On November 22, 1995, the 26 state court of appeal affirmed the judgment. (See id. at 1, 5.) 27 Petitioner doesn’t appear to have filed a petition for review in 28 2 1 the state supreme court. See Cal. App. Cts. Case Info., 2 https://appellatecases.courtinfo.ca.gov/search/ 3 searchResults.cfm?dist=0&search=party (search for “Rudy” with 4 “Vasquez” in Sup. Ct.) (last visited Mar. 11, 2021). 5 On August 23, 2016, Petitioner filed a federal habeas 6 petition, claiming that under Johnson, 576 U.S. at 591 , his 7 sentence was unconstitutional. See Pet., Vasquez, 16-cv-6333-JLS 8 (JPR), ECF No. 1. On September 10, 2017, the Court denied the 9 petition on the merits and dismissed it with prejudice. See Order 10 Accepting R. & R., id., ECF No. 28. 11 On May 17, 2019, Petitioner filed a habeas petition in the 12 superior court, challenging the constitutionality of the 13 restitution component of his sentence. (See Lodged Doc. 2.) On 14 July 26, 2019, the superior court denied the petition. (See Lodged 15 Doc. 3.) On August 30, 2019, he filed a habeas petition in the 16 state court of appeal, raising the same claims as in the Petition. 17 (See Lodged Doc. 5.) On January 20, 2020, the court of appeal 18 denied the petition. (See Lodged Doc. 6.) On January 29, 2020, he 19 filed a habeas petition in the state supreme court, again raising 20 the Petition’s claims (see Lodged Doc. 8); the supreme court 21 summarily denied the petition on May 27 (see Lodged Doc. 9). 22 Meanwhile, on August 30, 2019, Petitioner filed in the 23 superior court a petition for resentencing under Penal Code section 24 1170.95.2 (See Lodged Doc. 4.) On October 1, 2020, the superior [25] 2 Error! Main Document Only.Senate Bill 1437, which went into 26 effect in 2019, “was enacted to ‘amend the felony murder rule and the natural and probable consequences doctrine, as it relates to [27] murder, to ensure that murder liability is not imposed on a person 28 3 1 court denied the petition. (See Lodged Doc. 10.) That same day, 2 he filed a notice of appeal. (Lodged Doc. 11.) That appeal 3 remains pending. See Cal. App. Courts Case Info., https:// 4 appellatecases.courtinfo.ca.gov/search.cfm?dist=2 (search for 5 “Rudy” with “Vasquez” in 2d App. Dist.) (last visited Mar. 18, 6 2021). 7 PETITIONER’S CLAIMS ARE SUCCESSIVE 8 The Antiterrorism and Effective Death Penalty Act of 1996 9 provides, in 28 U.S.C. § 2244 (b), as follows: 10 (1) A claim presented in a second or successive habeas 11 corpus application under section 2254 that was presented 12 in a prior application shall be dismissed. 13 (2) A claim presented in a second or successive habeas 14 corpus application under section 2254 that was not 15 presented in a prior application shall be dismissed unless— 16 (A) the applicant shows that the claim relies on 17 a new rule of constitutional law, made retroactive to 18 cases on collateral review by the Supreme Court, that 19 was previously unavailable; or 20 (B)(i) the factual predicate for the claim could 21 not have been discovered previously through the 22 exercise of due diligence; and [23] who is not the actual killer, did not act with the intent to kill, 24 or was not a major participant in the underlying felony who acted with reckless indifference to human life.’” People v. Martinez, 31 25 Cal. App. 5th 719, 723 (2019) (citation omitted). The bill enacted section 1170.95(a) to allow those so convicted to “file a petition 26 with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any [27] remaining counts.” Id. (citation omitted). 28 4 1 (ii) the facts underlying the claim, if proven 2 and viewed in light of the evidence as a whole, would 3 be sufficient to establish by clear and convincing 4 evidence that, but for constitutional error, no 5 reasonable factfinder would have found the applicant 6 guilty of the underlying offense. 7 (3)(A) Before a second or successive application 8 permitted by this section is filed in the district court, 9 the applicant shall move in the appropriate court of 10 appeals for an order authorizing the district court to 11 consider the application. 12 Not all “[h]abeas petitions that are filed second-in-time are 13 . . . second or successive.” Clayton v. Biter, 868 F.3d 840 , 843 14 (9th Cir. 2017). For instance, a petition is not successive “if 15 the factual predicate for the claim accrued only after the time of 16 the initial petition.” Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 17 2018) (citation omitted). Nor is a petition successive “if it is 18 based on an intervening state court judgment . . . notwithstanding 19 that the same claim . . . could have been brought in the first 20 petition.” Id. (emphasis omitted) (citing Magwood v. Patterson, [21] 561 U.S. 320, 331-36 (2010)). A state-court judgment may be 22 “intervening” even if it leaves “in place an earlier challenged 23 conviction and sentence.” Clayton, 868 F.3d at 843-44 (citation 24 omitted). Thus, in Clayton, in which the petitioner challenged the 25 denial of a resentencing petition filed under a different state-law 26 provision than the one at issue here, the Ninth Circuit held that 27 the resentencing petition’s denial “result[ed] in the entry of a 28 5 1 new appealable order or judgment,” and therefore his claim 2 challenging that denial wasn’t successive. 868 F.3d at 844 ; see 3 Young v. Cueva, No. CV 20-8304-CJC(E), 2020 WL 8455474 , at *2 (C.D. 4 Cal. Oct. 27, 2020) (finding that “denial of a petition for 5 resentencing under . . . section 1170.95” constituted “new 6 judgment” and that petitioner’s challenge of denial was not 7 successive). 8 Accordingly, if the Petition challenged the superior court’s 9 denial of Petitioner’s section 1170.95 resentencing petition, it 10 likely wouldn’t be successive. See Young, 2020 WL 8455474 , at *2. 11 But the Petition doesn’t address that denial;3 instead, it 12 challenges the same 1994 judgment as in his 2016 petition in this 13 Court. Indeed, the current Petition’s third ground is virtually 14 identical to the claim he raised in that petition, compare Pet., 15 Vasquez, 16-cv-6333-JLS (JPR), ECF No. 1, with Pet. at 6, 20-22, 16 which the Court denied on the merits, see Order Accepting R. & R., [17] id., ECF No. 28. 18 Thus, Petitioner’s claims, which for the reasons Respondent 19 notes aren’t based on a factual predicate that accrued after his 20 initial petition was decided or on an intervening state-court 21 judgment (see Mot. Dismiss, Mem. P. & A. at 5-8), are impermissibly 22 successive. See Davis v. Sullivan, No. 17-73465, 2018 U.S. App. 23 LEXIS 19388 , *1 (9th Cir. July 13, 2018) (distinguishing Clayton 24 because petition did not challenge denial of resentencing but [25] 26 3 For the reasons Respondent points out (see Mot. Dismiss, Mem. P. & A. at 8-12), even if it did, the Court would need to [27] abstain under Younger, 401 U.S. at 45-46 . 28 6 1 ||rather original judgment of conviction); Cole v. Sullivan, 480 F. 2 ||Supp. 3d 1089, 1097 (C.D. Cal. Aug. 19, 2020) (holding that “denial 3 Jlof [section 1170.95] resentencing relief” does not “open the door 4 ||for a petitioner to bring a new challenge to an old conviction that 5 |}already has been challenged, versus a challenge to the resentencing 6 ||decision, absent authorization to file a second or successive 7 |lpetition”); Kirkpatrick v. Foss, No. CV 17-08917-CAS (AGR), 2019 WL 8 114859062, at *1 (C.D. Cal. Oct. 2, 2019) (same), appeal filed, No. 91119-56438 (9th Cir. Dec. 11, 2019). 10 Because the Petition is successive within the meaning of 11 2244(b), Petitioner was required to secure an order from the 12 ||Ninth Circuit authorizing its filing. See Cooper v. Calderon, 274 13 1270, 1274 (9th Cir. 2001) (per curiam). A review of the 14 ||Ninth Circuit’s docket indicates that he has not obtained any such 15 j}Jorder; indeed, he apparently has never even requested one. 16 |/Accordingly, the Petition must be dismissed. 17 ORDER 18 For the foregoing reasons, IT IS ORDERED that Respondent’s 19 ||motion to dismiss is granted and the Petition is dismissed without 29 |}Pprejudice. 21 LET JUDGMENT BE ENTERED ACCORDINGLY. ae aa 29 || DATED: March 24, 2021 aul JOSEPHINE L. STATON 23 U.S. DISTRICT JUDGE Presented by: 24 Yatt. 25 |lSean Rosenbluth SOS 26 Magistrate Judge