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-07708-ODW-PD DAVID SCONCE, [13] ORDER DISMISSING ACTION Petitioner, WITHOUT PREJUDICE AND [14] DENYING CERTIFICATE OF v. APPEALABILITY [15] 16 PATRICK COVELLO, Warden, 17 Respondent. [18] I. Introduction [19] On September 20, 2021, Petitioner David Sconce, a California state [20] prisoner, filed a “Petition for Writ of Error Coram Nobis, Pursuant to the All [21] Writs Acts, 28 U.S.C. § 1651 (a).” [Dkt. No. 1.] Petitioner pled guilty to [22] conspiracy to commit murder in April 1997 and was sentenced to lifetime [23] probation. Invoking 28 U.S.C. § 1651 (a), Petitioner alleges that: (1) the state [24] proceedings misinterpreted a March 1997 grant of writ of federal habeas [25] corpus pursuant to the Ninth Circuit’s decision in Sconce v. Garcetti, 96 F.3d 26 1451 , 1996 WL 495109 (9th Cir. 1996); and (2) his counsel committed [28] 1 ineffective assistance of counsel during the proceedings. 2 For the reasons stated below, the Petition should be summarily dismissed. [3] II. Pertinent Procedural History [4] The instant Petition is Petitioner’s fifth attempt to challenge his 1997 [5] plea to conspiracy to commit murder and lifetime probation sentence, which [6] he was found to have violated and thereafter sentenced to 25 years to life in [7] 2013. [8] His first habeas petition challenging the plea proceedings was denied [9] and dismissed with prejudice in February 2018 after the Court reached the [10] merits. Sconce v. California, No. 2:14-cv-2447-ODW-JC (C.D. Cal.), Dkt. No. [11] 78, report and recommendation adopted, 2018 U.S. Dist. LEXIS 56070 . [12] Petitioner voluntarily dismissed his second habeas petition in February [13] 2021, after the Magistrate Judge issued a Report and Recommendation for [14] dismissal without prejudice on the ground that it was second or successive. [15] Sconce v. Covello, No. 2:20-cv-01846-ODW-PD (C.D. Cal.), Dkt. Nos. 22, 27, 28, [16] 29. [17] Petitioner’s third habeas petition was dismissed without prejudice as [18] second or successive in August 2021. Sconce v. Covello, No. 2:21-cv-0487219 ODW-PD (C.D. Cal.), Dkt. No. 6. The Clerk of the Court referred the Petition [20] to the Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a). On September [21] 20, 2021, the Ninth Circuit issued an order denying Petitioner’s application [22] for authorization to file a second or successive § 2254 habeas corpus petition. [23] Sconce v. Covello, No. 21-71252, Dkt. No. 5. [25] 1 The procedural history of Petitioner’s state criminal cases and federal 26 petitions for a writ of habeas corpus is detailed in a 2018 Report and Recommendation that was adopted by this Court in dismissing a petition for a writ [27] of habeas corpus. Sconce v. California, No. 2:14-cv-2447-ODW-JC, Dkt. No. 78 at 328 20, 2018 U.S. Dist. LEXIS 56057 , at *2-*25. 1 His fourth habeas petition was dismissed as second or successive on 2 September 17, 2021. Sconce v. Covello, No. 2:21-cv-07067-ODW-PD (C.D. Cal.), Dkt. No. 3. [3] III. Summary Dismissal is Warranted [4] Petitioner now alleges that a writ of error coram nobis is an appropriate [5] vehicle to challenge the 1997 state court proceedings because they occurred [6] following federal habeas relief which ordered specific performance of a prior [7] plea agreement in Petitioner’s criminal case. [8] “[T]he writ of error coram nobis is a highly unusual remedy, available [9] only to correct grave injustices in a narrow range of cases where no more [10] conventional remedy is applicable.” United States v. Riedl, 496 F.3d 1003 , [11] 1005 (9th Cir. 2007). Such relief may be sought only from the court whose [12] ruling is being challenged. See United States v. Monreal, 301 F.3d 1127 , 1131 [13] (9th Cir. 2002) (“A writ of error coram nobis attacking [a] conviction may only [14] be brought in the sentencing court.”). Thus, “[c]oram nobis relief is not [15] available in federal court to attack a state court conviction.” Casas-Castrillon [16] v. Warden, 265 F. App'x 639, 640 (9th Cir. 2008); accord Finkelstein v. Spitzer, [17] 455 F.3d 131, 134 (2d Cir. 2006), cert. denied, 549 U.S. 1169 (2007) (“[D]istrict [18] courts lack jurisdiction to issue writs of coram nobis to set aside judgments of [19] state courts.”); Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir. 2003) (same); [20] Sinclair v. Louisiana, 679 F.2d 513, 514 (5th Cir. 1982) (“It is well settled that [21] the writ of error coram nobis is not available in federal court to attack state [22] criminal judgments.”); Hensley v. Municipal Court, 453 F.2d 1252 , 1252 n.2 [23] (9th Cir. 1972) (“We are unable to treat this petition as one seeking coram [24] nobis relief because [the petitioner] seeks to challenge a state court proceeding [25] in federal court. Coram nobis lies only to challenge errors occurring in the [26] same court.”), rev’d on other grounds, 411 U.S. 345 (1973); Rafus v. United 27 States, 2014 WL 3954871 , at *2 (C.D. Cal. Aug. 2014) (same). [28] 1 To obtain coram nobis relief, a petitioner must show that: “(1) a more 2 usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction [3] sufficient to satisfy the case or controversy requirement of Article III; and (4) [4] the error is of a fundamental character.” Matus-Leva v. United States, 287 5 F.3d 758, 760 (9th Cir. 2002) (in the § 2255 context) (citing Hirabayashi v. [6] United States, 828 F.2d 591, 604 (9th Cir. 1987)). Thus, where “the more [7] usual remedy of a habeas petition is available, the writ of error coram nobis is [8] not.” Id. at 761. [9] The current Petition challenges the 1997 California state court [10] proceedings in which Petitioner pled guilty to conspiracy to commit murder [11] and received a lifetime probation sentence. Accordingly, federal coram nobis [12] relief is unavailable because the error is alleged to have been made not in this [13] court, but in the state court. Additionally, petitioner is in custody after [14] violating probation. He cannot meet the first requirement as the more usual [15] remedy of a habeas petition is available to him even if it would be second or [16] successive. See Matus-Leva, 287 F.3d at 761 (“A petitioner may not resort to [17] coram nobis merely because he has failed to meet the AEDPA's gatekeeping [18] requirements. To hold otherwise would circumvent the AEDPA's overall [19] purpose of expediting the presentation of claims in federal court and enable [20] prisoners to bypass the limitations and successive petitions provisions.”) [21] Properly construed as a habeas petition challenging the state court [22] proceedings, the instant Petition is again second or successive and subject to [23] summary dismissal. See Rule 4, Rules Governing Section 2254 Cases (district [24] court must summarily dismiss Section 2254 petitions “[i]f it plainly appears [25] from the petition and any attached exhibits that the petitioner is not entitled [26] to relief in the district court”). Absent an order from the Ninth Circuit, 27 Petitioner may not bring another habeas corpus petition in this Court [28] 1 challenging the 1997 conviction and sentence. See 28 U.S.C. § 2244 (b)(3)(A); 2 Burton v. Stewart, 549 U.S. 147, 157 (2007) (holding district court lacks jurisdiction to consider the merits of a second or successive petition absent [3] prior authorization from the circuit court). [4] Petitioner incorrectly asserts that the Antiterrorism and Effective [5] Death Penalty Act of 1996 (“AEDPA”) does not apply because he first sought [6] habeas relief prior to the statute’s enactment and the 1997 plea. Any [7] petitions filed before the 1997 proceedings are immaterial, because it is that [8] judgment which Petitioner now challenges. Consequently, the Petition is [9] governed by the AEDPA because it was filed after the statute became effective [10] on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Lambert v. [11] Blodgett, 393 F.3d 943, 965 (9th Cir. 2004). Moreover, even had the judgment [12] occurred pre-AEDPA and Petitioner filed a petition challenging it then, the [13] AEDPA’s second or successive standard would nonetheless apply to any post14 effective date filings. Prince v. Lizarraga, 733 F. App’x 382 , 384 (9th Cir. [15] 2018) (“[A]pplying AEDPA to second-in-time habeas petitions, where the [16] initial habeas petition was filed pre-AEDPA, does not constitute retroactive [17] application of AEDPA, let alone impermissible retroactive application. This is [18] because AEDPA's enactment does not ‘impair’ a petitioner's right to file a [19] second-in-time habeas petition, regardless of when he filed his initial [20] petition.”). Therefore, the Petition is dismissed without prejudice to Petitioner [21] seeking authorization from the Court of Appeals. [22] In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 [23] Cases in the United States District Courts, the Court has considered whether [24] a certificate of appealability is warranted in this case. See 28 U.S.C. [25] § 2253(c)(2) (“A certificate of appealability may issue . . . only if . . . [there is] a [26] substantial showing of the denial of a constitutional right”); Fed. R. App. P. 27 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 [28] 1 | U.S. 478, 484 (2000) (A “substantial showing . . . includes showing that g | reasonable jurists could debate whether (or, for that matter, agree that) the 3 petition should have been resolved in a different manner or that the issues 4 presented were ‘adequate to deserve encouragement to proceed further.”’) 5 (citation omitted). In this matter, Petitioner has not made a substantial 6 showing of the denial of a constitutional right. Accordingly, the Court 7 concludes that a certificate of appealability is unwarranted, and a certificate 3 of appealability is denied. [9] 10 IT IS SO ORDERED. NN Dated: October 7, 2021 alageeA13 HON.OTISD. WRIGHTH 14 UNITED STATES DISTRICT JUDGE [15] 1g | Presented by: 1) PO leuceay Lena hoe '8 | PATRICIA DONAHUE 19 | UNITED STATES MAGISTRATE JUDGE