David Wayne Crocker v. People of The State of California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID WAYNE CROCKER, ) Case No. 2:20-cv-09052-ODW-JC 12 ) Petitioner, ) 13 ) ORDER DISMISSING PETITION v. ) FOR WRIT OF HABEAS 14 ) CORPUS AND ACTION PEOPLE OF THE STATE OF ) WITHOUT PREJUDICE 15 CALIFORNIA, ) ) 16 ) Respondent. ) 17 ________________________________ 18 I. SUMMARY 19 On October 1, 2020, petitioner David Wayne Crocker, who is proceeding 20 pro se, initiated this case by formally filing a “Motion Rule 60(B)(6) Subdivisions 21 (3) (4) (5) (6) (d) (2) (3) (4) for Relief from a Judgment” which, in light of its 22 contents, the Court construes to be a Petition under 28 U.S.C. § 2254 for Writ of 23 Habeas Corpus by a Person in State Custody (“Current Federal Petition”). The 24 Current Federal Petition challenges petitioner’s 1980 conviction and sentence in 25 Los Angeles County Superior Court Case No. A-145849 (“State Case”). 26 /// 27 /// 28 Based on the record (including facts as to which this Court takes judicial 1 notice as detailed below) and the applicable law, the Current Federal Petition and 2 this action are dismissed without prejudice for lack of jurisdiction because 3 petitioner did not obtain the requisite authorization from the Court of Appeals to 4 file a successive petition. Further, the Clerk of the Court is directed to refer the 5 Current Federal Petition to the United States Court of Appeals for the Ninth 6 Circuit (“Ninth Circuit”) pursuant to Ninth Circuit Rule 22-3(a).1 7 II. PERTINENT PROCEDURAL HISTORY2 8 A. Pertinent State Proceedings 9 On September 4, 1980, in the State Case, petitioner pleaded guilty to second 10 degree murder and robbery and admitted that he used a firearm in connection with 11 such offenses. He was sentenced to state prison for a term of fifteen years to life. 12 /// 13 /// 14 /// 15 16 17 1Ninth Circuit Rule 22-3(a) provides in pertinent part: “Any petitioner seeking authorization to file a second or successive 2254 petition . . . in the district court must file an 18 application in the Court of Appeals demonstrating entitlement to such leave under 28 U.S.C. 19 § 2254 . . . . If a second or successive petition . . . is mistakenly submitted to the district court, the district court shall refer it to the [C]ourt of [A]ppeals.” 20 2The facts and procedural history set forth in this section are derived from the Current 21 Federal Petition and supporting documents and dockets/court records in the following Central 22 District of California (“CDCA”) and Ninth Circuit cases of which this Court takes judicial notice: (1) David Wayne Crocker v. Larry Small, CDCA Case No. 2:98-cv-09294-CM-AJW 23 (“First Federal Action”); (2) David Wayne Crocker v. Larry Small, Ninth Circuit Case No. 99- 24 56002 (“First Ninth Circuit Action”); (3) David Wayne Crocker v. Ernest Roe, Ninth Circuit Case No. 02-70139 (“Second Ninth Circuit Action”); (4) David Wayne Crocker v. J. Lizarraga, 25 CDCA Case No. 2:16-cv-05333-ODW-AJW (“Second Federal Action”); (5) David Wayne Crocker v. J. Lizarraga, CDCA Case No. 2:16-cv-05334-ODW-AJW (“Third Federal Action”); 26 and (6) David Wayne Crocker v. Joe A. Lizarraga, Ninth Circuit Case No. 16-72859 (“Third 27 Ninth Circuit Action”). See Fed. R. Evid. 201; Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (court may take judicial notice of undisputed matters of public record 28 including documents on file in federal or state courts). 2 1 B. First Federal Action (CDCA Case No. 98-9294) and First Ninth 2 Circuit Action (Case No. 99-56002) 3 On November 19, 1998, petitioner filed a Petition for Writ of Habeas 4 Corpus (“First Federal Petition”) in the First Federal Action, challenging the 5 judgment in the State Case. Judgment was entered dismissing the First Federal 6 Petition as untimely on April 22, 1999. 7 On May 20, 1999, petitioner filed a notice of appeal. On September 21, 8 1999, in the First Ninth Circuit Action, the Ninth Circuit denied petitioner’s 9 request for a certificate of appealability. 10 C. Second Ninth Circuit Action (Case No. 02-70139) 11 On January 25, 2002, petitioner filed an Application for Leave to File a 12 Second or Successive Petition in the Second Ninth Circuit Action, seeking leave 13 to file a second or successive petition challenging the judgment in the State Case. 14 On February 15, 2002, the Ninth Circuit denied such application. 15 D. Second and Third Federal Actions (CDCA Case Nos. 16-5333 and 16 16-5334) and Third Ninth Circuit Action (Case No. 16-72859) 17 On July 19, 2016, in the Second and Third Federal Actions, petitioner filed 18 two petitions for writ of habeas corpus (respectively, “Second Federal Petition” 19 and “Third Federal Petition”) again challenging the judgment in the State Case. 20 On July 28, 2016, this Court summarily dismissed the Second and Third Federal 21 Petitions without prejudice as successive. Judgment was entered accordingly on 22 July 29, 2016. 23 On August 26, 2016, petitioner formally filed an Application for Leave to 24 File a Second or Successive Petition in the Third Ninth Circuit Action, again 25 seeking leave to file a second or successive petition challenging the judgment in 26 the State Case. On April 17, 2017, the Ninth Circuit denied such application. 27 /// 28 /// 1 E. Current Federal Petition 2 As noted above, on December 3, 2019, petitioner formally filed the Current 3 || Federal Petition which again challenges the judgment in the State Case. The 4 || record does not reflect that petitioner has obtained authorization from the Ninth 5 || Circuit to file the Current Federal Petition in District Court.’ 6] HI. DISCUSSION 7 Before a habeas petitioner may file a second or successive petition in a 8 || district court, he must apply to the appropriate court of appeals for an order 9 || authorizing the district court to consider the application. Burton v. Stewart, 549 10 || U.S. 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(3)(A)). This provision 11 | “creates a ‘gatekeeping’ mechanism for the consideration of second or successive 12 || applications in district court.” Felker v. Turpin, 518 U.S. 651, 657 (1996); see 13 || also Reyes v. Vaughn, 276 F.Supp.2d 1027, 1028-30 (C.D. Cal. 2003) (discussing 14 | applicable procedures in Ninth Circuit). A district court lacks jurisdiction to 15 || consider the merits of a second or successive habeas petition in the absence of 16 || proper authorization from a court of appeals. Cooper v. Calderon, 274 F.3d 1270, 17 | 1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen, 157 F.3d 661, 664 18 | (9th Cir. 1998)), cert. denied, 538 U.S. 984 (2003). 19 A second or subsequent habeas petition is not considered “successive” if the 20 || initial habeas petition was dismissed for a technical or procedural reason, rather 21 | than on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-487 (2000) (second 22 || habeas petition not “successive” if initial habeas petition dismissed for failure to 23 || exhaust state remedies); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-645 24 || (1998) (second habeas petition not “successive” if claim raised in first habeas 25 || petition dismissed as premature); but see McNabb v. Yates, 576 F.3d 1028, 1030 26 3A search of the court’s PACER system does not reflect that petitioner has been granted 28 || leave to file a second or successive petition by the Ninth Circuit. 1 || (9th Cir. 2009) (dismissal on statute of limitations grounds constitutes disposition 2 || on the merits rendering subsequent petition “second or successive’); Henderson v. 3 || Lampert, 396 F.3d 1049, 1053 (9th Cir.) (dismissal on procedural default grounds 4 || constitutes disposition on the merits rendering subsequent petition “second or 5 || successive”’), cert. denied, 546 U.S. 884 (2005); Plaut v. Spendthrift Farm, Inc., 6 || 514 U.S. 211, 228 (1995) (dismissal for failure to prosecute treated as judgment on 7 || the merits) (citations omitted); Reyes v. United States, 1999 WL 1021815 *3 8 | (E.D.N.Y. 1999) (dismissal of first habeas petition for failure to prosecute 9 || pursuant to Fed. R. Civ. P. 41(b) constitutes dismissal on the merits and renders 10 || subsequently filed habeas petition second or successive). 11 Petitioner’s First Federal Petition was dismissed with prejudice as untimely 12 || — a determination which the Ninth Circuit has deemed to constitute a disposition 13 || on the merits. See McNabb, 576 F.3d at 1030. Accordingly, the Current Federal 14 || Petition — like the Second and Third Federal Petitions — is successive. Since 15 || petitioner filed the Current Federal Petition without authorization from the Ninth 16 || Circuit, this Court lacks jurisdiction to consider it. 17], IV. ORDER 18 IT IS THEREFORE ORDERED that the Current Federal Petition and this 19 || action are dismissed without prejudice. The Clerk of the Court is directed to refer 20 || the Current Federal Petition to the Ninth Circuit pursuant to Ninth Circuit Rule 21 || 22-3(a). 22 IT IS SO ORDERED. 23 24 | DATED: December 23, 2020 ~ bh Alia 26 TT RD HONORABLE D. WRIGHT, II 27 UNITED STATES DISTRICT JUDGE 28