William Joe Long v. George Jaime ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WILLIAM JOE LONG, Case No. 2:19-cv-07398-FMO-KES 12 Petitioner, ORDER TO SHOW CAUSE WHY 13 v. PETITION SHOULD NOT BE 14 GEORGE JAIME, Warden, DISMISSED AS SUCCESSIVE 15 Respondent. 16 17 On August 15, 2019, William Joe Long (“Petitioner”) constructively filed a 18 Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 19 U.S.C. § 2254 (the “Petition”). (Dkt. 1.) As discussed more fully below, the Court 20 orders Petitioner to show cause why the Petition should not be dismissed as 21 successive. 22 I. 23 BACKGROUND 24 The Petition challenges Petitioner’s 27-year determinate sentence imposed in 25 2009 after Petitioner pled guilty to manslaughter. (Dkt. 1 at 2.) Petitioner 26 challenges his sentence on the ground that he is entitled to early parole pursuant to 27 California’s Proposition 57. (Id. at 5.) California’s Proposition 57, approved by 28 voters in November 2016, expands eligibility for parole for certain felons convicted 1 of nonviolent crimes. See Travers v. California, No. 17-cv-06126, 2018 U.S. Dist. 2 LEXIS 18715 at *3-5, 2018 WL 707546 at *2-3 (N.D. Cal. Feb. 5, 2018). 3 In October 2017, Petitioner filed a federal habeas petition in this Court also 4 challenging his 2009 manslaughter conviction based on the grounds that: (1) it was 5 “doubled” improperly pursuant to California Penal Code § 1170.12(a)-(d); and 6 (2) the trial court “‘unlawfully’ applied a (5) year prison prior” which allegedly 7 violated, among other provisions, the “5th Amendment ‘Double Jeopardy.’” (2:17- 8 cv-07980-FMO-KES [“Long I”], Dkt. 1 at 5-6.) 9 In June 2018, the Court summarily dismissed the petition in Long I, because 10 Petitioner failed to show that it was timely. (Id., Dkts. 11 [Report and 11 Recommendation (“R&R”)], 20 [Order Accepting R&R], 21 [Judgment].) 12 II. 13 DISCUSSION 14 A. Legal Standard. The Petition is governed by the Antiterrorism and Effective Death Penalty 15 Act of 1996 (“AEDPA”), which provides in pertinent part as follows: 16 17 (b)(1) A claim presented in a second or successive habeas corpus 18 application under section 2254 that was presented in a prior 19 application shall be dismissed. 20 (2) A claim presented in a second or successive habeas corpus 21 application under section 2254 that was not presented in a prior 22 application shall be dismissed unless-- 23 (A) the applicant shows that the claim relies on a new rule of 24 constitutional law, made retroactive to cases on collateral 25 review by the Supreme Court, that was previously unavailable; 26 or 27 (B)(i) the factual predicate for the claim could not have been 28 discovered previously through the exercise of due diligence; 1 and 2 (ii) the facts underlying the claim, if proven and viewed in light 3 of the evidence as a whole, would be sufficient to establish by 4 clear and convincing evidence that, but for constitutional error, 5 no reasonable factfinder would have found the applicant guilty 6 of the underlying offense. 7 (3)(A) Before a second or successive application permitted by this 8 section is filed in the district court, the applicant shall move in the 9 appropriate court of appeals for an order authorizing the district court 10 to consider the application. 28 U.S.C. § 2244(b). 11 The entry of an amended judgment, however, constitutes a new, intervening 12 judgment pursuant to which the petitioner is in custody. Gonzalez v. Sherman, 873 13 F.3d 763, 770 (9th Cir. 2017). A habeas petition filed after this new judgment is 14 not second or successive, regardless of how many petitions the petitioner filed prior 15 to the judgment. Id. 16 17 B. The Petition Appears to Be Successive. The Petition appears to constitute a second and/or successive petition 18 challenging the same conviction as Petitioner’s Long I habeas petition within the 19 meaning of § 2244(b). Thus, it is incumbent on Petitioner under § 2244(b)(3)(A) to 20 secure an order from the Ninth Circuit authorizing the District Court to consider his 21 new Petition prior to filing it. Without an order from the Ninth Circuit, this Court 22 lacks subject matter jurisdiction. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 23 Cir. 2001), cert. denied, 538 U.S. 984 (2003). 24 IT IS THEREFORE ORDERED that, on or before October 4, 2019, 25 Petitioner show cause in writing, if any he has, why the Court should not 26 recommend that this action be dismissed with prejudice on the ground of 27 successiveness. 28 1 Petitioner may explain, for example, if any amended judgment has been 2 | entered since he filed his petition in Long I. Petitioner may also argue that the 3 | Petition falls under one of the 28 U.S.C. § 2244(b)(2)(A) exceptions; if he does so, 4 | then Petitioner should explain how the Petition relies on a new rule of constitutional 5 | law. 6 7 DATED: September 04, 2019 8 9 Hows Seat KAREN E. SCOTT 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28