David W. Sconce v. Patrick Covello

[8] IN THE UNITED STATES DISTRICT COURT [9] FOR THE CENTRAL DISTRICT OF CALIFORNIA [12] Case No. 2:21-cv-07067-ODW-PD DAVID SCONCE, [13] ORDER DISMISSING SECOND OR Petitioner, SUCCESSIVE HABEAS CORPUS [14] PETITION AND DENYING v. CERTIFICATE OF [15] APPEALABILITY 16 PATRICK COVELLO, Warden, 17 Respondent. [19] Before the Court is Petitioner’s fourth attempt to challenge his April [20] 1997 plea to conspiracy to commit murder and lifetime probation sentence. [21] [See Dkt. No. 1.] [22] The first habeas petition challenging the plea proceedings was denied [23] and dismissed with prejudice after the Court reached its merits. See Sconce v. [24] California, Case No. 2:14-cv-2447-ODW-JC (C.D. Cal. 2018), Dkt. No. 78, 2018 25 U.S. Dist. LEXIS 56057 , report and recommendation adopted, 2018 U.S. Dist. [28] 1 LEXIS 56070 . 2 Petitioner voluntarily dismissed his second habeas petition in February 2021, after this Court issued a Report and Recommendation that it was [3] second or successive. Sconce v. Covello, Case No. 2:20-cv-01846-ODW-PD [4] (C.D. Cal.), Dkt. Nos. 22, 27, 28, 2020 U.S. Dist. LEXIS 246316 , at *10-*12, [5] 2021 U.S. Dist. LEXIS 26063 , at *2. In moving to dismiss the petition [6] voluntarily, Petitioner stated he would seek authorization from the Ninth [7] Circuit to file a second or successive petition in this Court. Id., Dkt. No. 27 at [8] 1. Petitioner did not file such a motion in the Ninth Circuit. [9] He did file another habeas petition in this Court on June 11, 2021. [10] Sconce v. Covello, Case No. 2:21-cv-04872-ODW-PD (C.D. Cal. 2021), Dkt. [11] Nos. 4-5. The third habeas petition was dismissed as second or successive on [12] August 11, 2021, and referred to the Ninth Circuit pursuant to Ninth Circuit [13] Rule 22-3(a) as an application for authorization to file a second or successive [14] petition. Id., Dkt. No. 6, 2021 U.S. Dist. LEXIS 151192 . As of the date of this [15] Order, that application is pending. See Sconce v. Covello, Case No. 21-71252 [16] (2021). [17] The instant Petition is also second or successive and is subject to [18] dismissal.2 Absent an order from the Ninth Circuit, Petitioner may not bring [19] another habeas corpus petition in this Court challenging the 1997 conviction [20] and sentence. See 28 U.S.C. § 2244 (b)(3)(A); Burton v. Stewart, 549 U.S. 147 , [21] 157 (2007) (holding district court lacks jurisdiction to consider the merits of a [22] second or successive petition absent prior authorization from the circuit [23] court). For that reason, the Petition is dismissed without prejudice to [24] 1 The procedural history of Petitioner’s state criminal matter is detailed in the [25] 2018 Report and Recommendation that was adopted by this Court. Sconce, Case No. 26 2:14-cv-2447-ODW-JC, Dkt. No. 78 at 3-20, 2018 U.S. Dist. LEXIS 56057 , at *2-*25. 2 The Petition challenges the 1997 proceedings by raising a single claim that [27] the state court misinterpreted the District Court’s 1997 order granting the writ of 28 habeas corpus when it sentenced Petitioner to lifetime probation. [Dkt. No. 1 at 11.] 1 | Petitioner seeking authorization from the Court of Appeals. 9 In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 3 Cases in the United States District Courts, the Court has considered whether 4| 2 certificate of appealability is warranted in this case. See 28 U.S.C. 5 § 2253(c)(2) (“A certificate of appealability may issue... onlyif... [there is] a 6 substantial showing of the denial of a constitutional right”); Fed. R. App. P. 7 22(b); Miller-El v. Cockrell, 587 U.S. 322 , 336 (2003); Slack v. McDaniel, 529 3 U.S. 473, 484 (2000) (A “substantial showing... includes showing that 9 reasonable jurists could debate whether (or, for that matter, agree that) the 10 petition should have been resolved in a different manner or that the issues W presented were ‘adequate to deserve encouragement to proceed further.”’) 1 (citation omitted). In this matter, Petitioner has not made a substantial 3 showing of the denial of a constitutional right. Accordingly, the Court 14 concludes that a certificate of appealability is unwarranted, and a certificate of appealability is denied. [16] IT 1S SO ORDERED. [17] 18 ° : Dated: September 17, 2021 lta” [19] 20 HON. OTIS D. WRIGHT II 2] UNITED STATES DISTRICT JUDGE [22] Presented by: [23] Pelawer Mena hoe_ 25 | PATRICIA DONAHUE 9¢ | UNITED STATES MAGISTRATE JUDGE