Ronnie Dave Lewis v. Warden ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 RONNIE LEWIS, ) No. 2:24-cv-00805-JVS-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE 13 v. ) ) WHY THE PETITION SHOULD 14 UNKNOWN, ) ) NOT BE DISMISSED ) 15 Respondent. ) ) 16 17 18 I. 19 INTRODUCTION 20 On February 1, 2024, the Court received from Ronnie Lewis 21 (“Petitioner”), a California state prisoner at the California Correctional 22 Institution in Tehachapi, California, proceeding pro se and without paying the 23 required filing fee or seeking leave to proceed in forma pauperis, a Petition for 24 Writ of Habeas Corpus, on a state court form, seeking to challenge his 2017 25 convictions for pimping and human trafficking of a minor for a commercial sex 26 act, resulting in a sentence of two consecutive terms of life with the possibility 27 of parole, in the Los Angeles County Superior Court. Dkt. 1 (“Petition” or 28 “Pet.”) at 2 (CM/ECF pagination). 1 This Court’s records reveal Petitioner previously challenged the same 2 2017 convictions and sentence in this Court by filing a Petition for Writ of 3 Habeas Corpus by Person in State Custody in Lewis v. Montgomery, Case No. 4 2:19-cv-09734-JVS-JDE (C.D. Cal.) (“Prior Action”).1 On October 8, 2020, the 5 Court entered an order accepting a Report and Recommendation (“Report”) 6 by the assigned United States Magistrate Judge and denied the prior Petition. 7 Prior Action, Dkt. 34. The same day, the Court declined to issue a Certificate 8 of Appealability (“COA”) and entered a judgment of dismissal. See id., Dkt. 9 35-36. On October 30, 2020, Petitioner filed a Motion to Reconsider the Order 10 Denying a COA, which the Court denied on November 4, 2020. Id., Dkt. 39- 11 40. By Order dated November 17, 2021, the Court of Appeals for the Ninth 12 Circuit (“Ninth Circuit”) accepted for consideration Petitioner’s Request for a 13 COA. Id., Dkt. 43. On February 17, 2023, the Ninth Circuit denied 14 Petitioner’s Request for a COA. Id., Dkt. 46. 15 District courts are required to “promptly examine” all federal habeas 16 petitions brought under 28 U.S.C. § 2254 and, “[i]f it plainly appears from the 17 petition and any attached exhibits that the petitioner is not entitled to relief,” 18 the “judge must dismiss the petition[.]” Rule 4, Rules Governing Section 2254 19 Cases in the United States District Courts (“Habeas Rules”); Mayle v. Felix, 20 545 U.S. 644, 656 (2005). Based on a review of the Petition and the docket of 21 the Prior Action, the Petition appears subject to summary dismissal on several 22 grounds, as set forth below. 23 / / / 24 / / / 25 1 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of Petitioner’s prior 26 proceedings in federal court. See United States v. Raygoza-Garcia, 902 F.3d 994, 27 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed matters of public record, which may include court records available through [the Public Access 28 to Court Electronic Records].”). 1 II. 2 PETITIONER’S CLAIMS 3 Petitioner appears to assert five grounds for relief: (1) “coaching the 4 wit[]ness[;] mistrial”; (2) “racial discrimination”; (3) “ineffective assistance”; 5 (4) instructional error based on CALJIC No. 1.00; and (5) instructional error 6 based on CALJIC No. 7.16, which is apparently premised, at least in part, on 7 an inapplicable California senate bill. See Pet. at 3-5, 32-33, 35-38. It is unclear 8 whether Petitioner also seeks to reassert claims previously raised in the Prior 9 Action, as he includes portions of his Objections to the Report as well as 10 arguments regarding those prior claims. See, e.g., id. at 10-19, 23-28. 11 III. 12 DISCUSSION 13 A. The Petition Appears to Be Second and Successive 14 The Antiterrorism and Effective Death Penalty Act of 1996 (the 15 “AEDPA”) applies to the instant action because Petitioner filed it after the 16 AEDPA’s effective date of April 24, 1996. See Woodford v. Garceau, 538 U.S. 17 202, 204, 207 (2003). The AEDPA “greatly restricts the power of federal courts 18 to award relief to state prisoners who file second or successive habeas corpus 19 applications.” Tyler v. Cain, 533 U.S. 656, 661 (2001). Title 28, United States 20 Code, Section 2244(b) provides, in pertinent part, as follows: 21 (1) A claim presented in a second or successive habeas 22 corpus application under section 2254 that was presented in a prior 23 application shall be dismissed. 24 (2) A claim presented in a second or successive habeas 25 corpus application under section 2254 that was not presented in a 26 prior application shall be dismissed unless– 27 (A) the applicant shows that the claim relies on a new 28 rule of constitutional law, made retroactive to cases on 1 collateral review by the Supreme Court, that was previously 2 unavailable; or 3 (B)(i) the factual predicate for the claim could not have 4 been discovered previously through the exercise of due 5 diligence; and 6 (ii) the facts underlying the claim, if proven and 7 viewed in light of the evidence as a whole, would be 8 sufficient to establish by clear and convincing evidence that, 9 but for constitutional error, no reasonable factfinder would 10 have found the applicant guilty of the underlying offense. 11 (3)(A) Before a second or successive application permitted 12 by this section is filed in the district court, the applicant shall move 13 in the appropriate court of appeals for an order authorizing the 14 district court to consider the application. 15 A petitioner’s failure to obtain authorization from the appropriate 16 appellate court before filing a second or successive habeas petition deprives the 17 district court of jurisdiction to consider the petition. See Burton v. Stewart, 549 18 U.S. 147, 157 (2007) (per curiam); Cooper v. Calderon, 274 F.3d 1270, 1274 19 (9th Cir. 2001) (per curiam). 20 Here, as explained above, the instant Petition challenges the same 2017 21 conviction and sentence that Petitioner challenged in the Prior Action. 22 Consequently, because the Court adjudicated and dismissed the Prior Action 23 on the merits, the instant Petition appears to constitute a second and/or 24 successive petition. As such, Petitioner must obtain permission from the Ninth 25 Circuit before this Court can adjudicate the issues raised in the Petition. 28 26 U.S.C. § 2244(b)(3)(A). As Petitioner has not presented, and the Court did not 27 locate in a record search, any documentation indicating the Ninth Circuit has 28 issued “an order authorizing the district court to consider the application,” it 1 appears the Court lacks jurisdiction over the Petition, rendering the instant 2 Petition subject to dismissal. 3 B. Other Defects 4 The Petition also suffers from several other defects. 5 First, Petitioner has not named a respondent. Failure to name the correct 6 respondent destroys personal jurisdiction. See Ortiz-Sandoval v. Gomez, 81 7 F.3d 891, 894 (9th Cir. 1996) (as amended); Stanley v. Cal. Supreme Court, 21 8 F.3d 359, 360 (9th Cir. 1994) (as amended). Typically, the proper respondent 9 for a habeas petition is the warden of the facility in which the petitioner is 10 incarcerated. See Stanley, 21 F.3d at 360; see also Habeas Rule 2(a) (“If the 11 petitioner is currently in custody under a state-court judgment, the petition 12 must name as respondent the state officer who has custody.”). Thus, Petitioner 13 must name the warden where he is currently incarcerated. 14 Second, the Petition was not submitted on a form approved by this 15 district. Rule 2(d) of the Habeas Rules authorizes district courts to require 16 habeas petitions be filed in a form prescribed by the Local Rules. This Court 17 has such a Local Rule. See C.D. Local Civil Rule 83-16.1 (“A petition for writ 18 of habeas corpus . . . shall be submitted on the forms approved and supplied by 19 the Court.”). The Petition is subject to dismissal for failure to use a Court- 20 approved form. 21 Third, Petitioner did not pay the $5 filing fee for a federal habeas petition 22 and did not file an application to proceed without prepayment of the filing fee 23 as required by 28 U.S.C. § 1915. 24 Fourth, under 28 U.S.C. § 2254(b)(1), federal habeas relief may not be 25 granted unless Petitioner has exhausted the remedies available in state courts 26 or an exception to the exhaustion requirement applies. Exhaustion requires 27 that the petitioner’s claims be fairly presented to the state courts and be 28 disposed of on the merits by the highest court of the state. James v. Borg, 24 1 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 2 1979); see also Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). A 3 claim has not been fairly presented to a state court unless the petitioner has 4 described both the operative facts and the federal legal theory on which the 5 claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per 6 curiam); Picard v. Connor, 404 U.S. 270, 275-78 (1971); Greenway v. Schriro, 7 653 F.3d 790, 801 (9th Cir. 2011). As a matter of comity, a federal court will 8 not entertain a habeas corpus petition unless the petitioner has exhausted the 9 available state judicial remedies on every ground presented in the petition. See 10 Rose v. Lundy, 455 U.S. 509, 518-22 (1982). Petitioner has the burden of 11 demonstrating that he has exhausted his available state remedies. See, e.g., 12 Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per curiam). 13 Here, Petitioner has not alleged any efforts to exhaust his claims in state 14 court. As Petitioner did not use an approved form that would have required 15 him to provide information about exhaustion, the Court does not make a 16 determination as to whether his claims are exhausted, but notifies Petitioner of 17 this requirement. 18 C. Petitioner May Have Intended for the Petition to Be Determined by a 19 State Court, not this Court 20 Finally, the Court notes that the caption page of the Petition does not list 21 the United States District Court for the Central District of California as the 22 Court in which Petitioner intended to file this case. Instead, the caption lists 23 the following address: “320 W Temple St LA, LA 90013,” which does not 24 correspond with the United States District Court. Pet. at 1. In addition, a 25 “Request for Appointment of Counsel and Declaration of Indigency” 26 submitted with the Petition is addressed to “The Superior Court Of The State 27 Of California County Of Los Angeles,” while a letter submitted with the 28 Petition is addressed “to the Supreme Court Judge.” Id. at 20, 39. 1 The foregoing references, as well as the fact that the Petition is submitted 2 on a state court form, all appear to indicate that it may be Petitioner’s intention 3 to submit the Petition for consideration to a state court, not this Court. As 4 such, the Court directs Petitioner to advise the Court whether he intended the 5 Petition to be considered by this Court in the first instance, rather than by a 6 state court. 7 IV. 8 ORDER 9 For the foregoing reasons, the Petition is subject to dismissal. Petitioner 10 is ORDERED TO SHOW CAUSE by filing a written response by no later 11 than thirty (30) days from the date of this Order explaining why this action 12 should not be dismissed under Habeas Rule 4 or transferred to the Ninth 13 Circuit for the reasons stated above. If Petitioner contends the Petition is not a 14 second and/or successive petition, Petitioner should clearly explain this and 15 attach any supporting documents showing that his claims are not second 16 and/or successive to his Prior Action. If Petitioner contends he has exhausted 17 his state court remedies regarding the claims raised in the Petition, Petitioner is 18 directed to provide information regarding his efforts to exhaust his claims in 19 the state courts, and attach copies of any documents establishing that his 20 claims are indeed exhausted. Lastly, if Petitioner did intend the Petition to be 21 considered by this Court, he should affirmatively so state. 22 Alternatively, Petitioner may voluntarily dismiss this action by signing 23 and returning the attached Notice of Dismissal under Federal Rule of Civil 24 Procedure 41(a). The Clerk is directed to provide a Form Notice of Dismissal 25 with this Order. 26 Petitioner is cautioned that a failure to respond timely in compliance 27 with this Order may result in this action being dismissed for the foregoing 28 1 reasons, for failure to prosecute, and for failure to comply with a Court order. 2 Fed. R. Civ. P. 41(b). 3 4 ||Dated: February 15, 2024 dL 6 HN D. EARLY United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28