Marques Borney v. Brian Kibler

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 MARQUES BORNEY, ) Case No. 2:21-cv-07289-JAK (JDE) ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE RE: 13 v. ) ) DISMISSAL 14 BRIAN KILBER, Warden, ) ) ) 15 Respondent. ) ) — 16 — ) — 17 — 18 On September 3, 2021, the United States District Court for the Southern 19 District of California (“Southern District”) received a Petition for Writ of 20 Habeas Corpus Under 28 U.S.C. § 2254 by a Person in State Custody (Dkt. 1, 21 “Petition” or “Pet.”) from Marques Borney (“Petitioner”), a California state 22 prisoner at High Desert State Prison, proceeding pro se. The Southern District 23 transferred the action to this District and the file was received in this District 24 on September 13, 2021. Dkt. 2, 3. The conviction Petitioner seeks to challenge 25 by the Petition was entered in the Los Angeles Superior Court (“LASC”) on 26 January 26, 2018 in case number SA 082 880-02. Id. at 1-2 . 27 On March 19, 2020, Marques Borney, a California State prisoner at 28 High Desert State Prison, filed a Petition for Writ of Habeas Corpus by a 1 Person in State Custody in this Court in Case No. 2:20-cv-02625-JAK-JDE 2 (“Prior Action”). The petition in the Prior Action also challenged a conviction 3 entered by the LASC on January 26, 2018 in case number SA-082-880. Prior 4 Action, Dkt. 1 at 2; Dkt. 10 (“Prior Petition”) at 2. Following briefing, on 5 October 30, 2020, the Court accepted and adopted a Report and 6 Recommendation, denied the Prior Petition on the merits, dismissed the Prior 7 Action with prejudice, denied a certificate of appealability, and entered 8 judgment of dismissal. See Prior Action, Dkt. 23-25. The Court thereafter 9 denied two motions for reconsideration. Dkt. 27, 31. On November 24, 2020, 10 Petitioner filed a Notice of Appeal of the judgment (Dkt. 28), which, according 11 to on-line records of the Ninth Circuit Court of Appeals, remains open. 12 Based on a review of the Petition, as well as information derived from 13 the docket of the Prior Action, it appears that the Petition herein constitutes a 14 second or successive petition under 28 U.S.C. § 2244 (b), as Petitioner 15 previously sought habeas relief from the same judgment of conviction. 16 The Antiterrorism and Effective Death Penalty Act of 1996 (the 17 “AEDPA”) applies to the instant action because Petitioner filed it after the 18 AEDPA’s effective date of April 24, 1996. See Campbell v. Henry, 614 F.3d 19 1056, 1058 (9th Cir. 2010). The AEDPA “greatly restricts the power of federal 20 courts to award relief to state prisoners who file second or successive habeas 21 corpus applications.” Tyler v. Cain, 533 U.S. 656, 661 (2001). Title 28, United 22 States Code, Section 2244(b) provides, in pertinent part, as follows: 23 (1) A claim presented in a second or successive habeas 24 corpus application under section 2254 that was presented in a prior 25 application shall be dismissed. 26 (2) A claim presented in a second or successive habeas 27 corpus application under section 2254 that was not presented in a 28 prior application shall be dismissed unless – 1 (A) the applicant shows that the claim relies on a new 2 rule of constitutional law, made retroactive to cases on 3 collateral review by the Supreme Court, that was previously 4 unavailable; or 5 (B)(i) the factual predicate for the claim could not have 6 been discovered previously through the exercise of due 7 diligence; and 8 (ii) the facts underlying the claim, if proven and 9 viewed in light of the evidence as a whole, would be 10 sufficient to establish by clear and convincing evidence that, 11 but for constitutional error, no reasonable factfinder would 12 have found the applicant guilty of the underlying offense. 13 (3)(A) Before a second or successive application permitted 14 by this section is filed in the district court, the applicant shall move 15 in the appropriate court of appeals for an order authorizing the 16 district court to consider the application. 17 A petitioner’s failure to obtain authorization from the appropriate 18 appellate court before filing a second or successive habeas petition deprives the 19 district court of jurisdiction to consider the petition. See Burton v. Stewart, 549 20 U.S. 147, 157 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) 21 (per curiam). 22 Here, as noted, it appears Petitioner previously challenged the same 23 judgment of conviction in the Prior Action. Thus, the Petition now pending 24 appears to constitute a second and/or successive petition and as such, 25 Petitioner must obtain permission from the Ninth Circuit before this Court can 26 adjudicate the issues raised by the Petition. Petitioner checked a box stating he 27 had not filed a prior habeas petition in federal court, but also checked a box 28 stating that a prior case was denied on the merits and the Ninth Circuit has 1 || “given [Petitioner] permission to file this second or successive petition.” Pet. at 2 ||5, 9 21. Petitioner did not include a copy of an order by the Ninth Circuit 3 authorizing this Court to consider the Petition and the Court has not 4 ||independently been able to locate any such order in a search of on-line records 5 ||of the Ninth Circuit. Absent such authorization, it appears that the Court lacks 6 ||jurisdiction to adjudicate the Petition. 7 kk OK 8 IT THEREFORE IS ORDERED that, within 21 days from the date of 9 ||this Order, Petitioner show cause in writing why the Court should not dismiss 10 || this action for lack of jurisdiction because Petitioner failed to secure an order 11 || from the Ninth Circuit authorizing the District Court to consider the Petition 12 || prior to filing it in this Court. Petitioner may comply with this Order by filing a 13 ||copy of an Order by the Ninth Circuit authorizing Petitioner to proceed with 14 Petition in this Court. 15 Petitioner is warned that his failure to timely respond to this Order 16 ||may result in the Petition being dismissed for the reasons stated above and 17 || for failure to prosecute and comply with a court order. — 18 — 19 || Dated: September 13, 2021 20 Lh he cies N D. EARLY nited States Magistrate Judge — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —