(HC) Grushen v. Covello ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH R. GRUSHEN, JR., No. 2:18-cv-2913 DB P 12 Petitioner, 13 v. ORDER AND 14 PATRICK COVELLO, Warden, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. 19 Examination of the in forma pauperis application reveals that petitioner is unable to afford 20 the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 21 28 U.S.C. § 1915(a). 22 I. Procedural Background 23 Petitioner was convicted in 2008 in the San Joaquin County Superior Court of violations 24 of California Penal Code § 246 (discharge of a firearm at an inhabited dwelling, vehicle, or 25 aircraft) and Penal Code § 12022.53(d) (additional punishment for intentional use or discharge of 26 a firearm which caused great bodily injury or death). Pet. Attach. (Order of San Joaquin Superior 27 Court, Jan. 31, 2018, ECF No. 1 at 35-36). Petitioner was sentenced to five years for the 28 underlying conviction and twenty-five years to life for the enhancement. Id. Petitioner’s direct 1 appeal was denied at the California Court of Appeals, Third Appellate Division, and then at the 2 California Supreme Court in 2010. 3 Petitioner filed four separate petitions for writ of habeas corpus in the San Joaquin County 4 Superior Court, each asserting claims related to the effectiveness of his trial and/or appellate 5 counsel. These petitions were all denied. He then filed three separate petitions with the court of 6 appeal, each of which was summarily denied. Finally, he filed a petition for writ of habeas corpus 7 with the California Supreme Court, which was also summarily denied. 8 On December 9, 2010, petition filed a petition for writ of habeas corpus in this court, 9 Grushen v. Haws, Case No. 2:10-cv-3300-JKS (E.D. Cal.) (“the prior habeas action”). The 10 petition was denied on February 12, 2014, and petitioner’s appeal was dismissed as untimely. 11 In the instant petition, petitioner challenges the same conviction and sentence as asserted 12 in Case No. 2:10-cv-3300. Here, however, he seeks resentencing in light of changes made to 13 Penal Code § 12022.53, effective on January 1, 2018, pursuant to California Senate Bill No. 620. 14 The amendment gave discretion to the court, “in the interest of justice” and “at the time of 15 sentencing” or “to any resentencing,” to “strike or dismiss an enhancement otherwise required to 16 be imposed by the section.” Cal. Pen. Code § 12022.53(h) (2018). 17 Petitioner asserts that he is entitled to resentencing pursuant to amended § 12022.53(h) in 18 light of his lack of a prior criminal record at the time of conviction, his youth at the time of the 19 crime, his developmental disabilities, his participating in prison programming, and his maturity 20 during incarceration. In pursuit of relief on this claim, petitioner filed a petition for writ of habeas 21 corpus in the San Joaquin County Superior Court on January 8, 2018. That petition was denied 22 without prejudice on January 31, 2018, and then with prejudice on March 19, 2018. Pet. Attach. 23 (ECF No. 1 at 35-37). The petition was later denied on August 8, 2018, in the California Supreme 24 Court. Id. (ECF No. 1 at 56). This action followed shortly thereafter, with petitioner arguing that 25 the state court judges erred in their denials of his petition, and he seeks resentencing pursuant to 26 Senate Bill No. 620. 27 //// 28 //// 1 II. Discussion 2 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), enacted on April 3 24, 1996, provides in pertinent part that: 4 (a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention 5 of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by 6 a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in § 2255. 7 (b)(1) A claim presented in a second or successive habeas corpus 8 application under section 2254 that was presented in a prior application shall be dismissed. 9 (2) A claim presented in a second or successive habeas corpus 10 application under section 2254 that was not presented in a prior application shall be dismissed unless-- 11 (A) the applicant shows that the claim relies on a new rule of 12 constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or 13 (B)(i) the factual predicate for the claim could not have been 14 discovered previously through the exercise of due diligence; and 15 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and 16 convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying 17 offense. 18 (3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the 19 appropriate court of appeals for an order authorizing the district court to consider the application. 20 (B) A motion in the court of appeals for an order authorizing the 21 district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals. 22 (C) The court of appeals may authorize the filing of a second or 23 successive application only if it determines that the application makes a prima facie showing that the application satisfies the 24 requirements of this subsection. 25 (D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the 26 filing of the motion. 27 (E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and 28 shall not be the subject of a Petition for Rehearing or for a Writ of 1 Certiorari. 2 (4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be 3 filed unless the applicant shows that the claim satisfies the requirements of this section. 28 U.S.C. § 2244. 4 28 U.S.C. § 2244(b)(3) “creates a ‘gatekeeping’ mechanism for the consideration of second or 5 successive applications in district court. The prospective applicant must file in the court of 6 appeals a motion for leave to file a second or successive habeas application in the district court. § 7 2244(b)(3)(A).” Felker v. Turpin, 518 U.S. 651, 657 (1996). 8 The petition in this case and that in the prior habeas action both challenge petitioner’s 9 custody pursuant to the same judgment entered by the San Joaquin County Superior Court. 10 Accordingly, the instant petition is a second or successive habeas petition for purposes of 28 11 U.S.C. § 2244. Therefore, petitioner was required to obtain authorization from the Court of 12 Appeals before filing the present petition. See 28 U.S.C. § 2244(b)(3)(A). No such authorization 13 has been obtained in this case. 14 Moreover, the claim asserted in the instant petition does not appear to fall within the 15 exceptions to the bar on second or successive petitions because the asserted claim is not based on 16 newly discovered facts or a “a new rule of constitutional law, made retroactive to cases on 17 collateral review by the Supreme Court, that was previously unavailable.” Tyler v. Cain, 533 U.S. 18 656, 662 (2001). However, this determination must be made by the United States Court of 19 Appeals upon a petitioner’s motion for an order authorizing the district court to consider his 20 second or successive petition. 28 U.S.C. § 2244(b); see also Burton v. Stewart, 549 U.S. 147, 157 21 (2007) (where the petitioner did not receive authorization from the Court of Appeals before filing 22 second or successive petition, “the District Court was without jurisdiction to entertain [the 23 petition]”); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000) (“[T]he prior-appellate-review 24 mechanism set forth in § 2244(b) requires the permission of the court of appeals before ‘a second 25 or successive habeas application under § 2254’ may be commenced.”). 26 Because petitioner has not obtained authorization from the Ninth Circuit Court of 27 Appeals, this Court cannot entertain the present petition. See Burton v. Stewart, supra. 28 1 | OI. Conclusion 2 In accordance with the above, IT IS HEREBY ORDERED that: 3 1. Petitioner’s motion to proceed in forma pauperis is granted; 4 2. The Clerk of Court is directed to assign a district judge to this case; and 5 IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be 6 | dismissed without prejudice. 7 These findings and recommendations are submitted to the United States District Judge 8 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 9 | after being served with these findings and recommendations, any party may file written 10 | objections with the court and serve a copy on all parties. Such a document should be captioned 11 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 | shall be filed and served within fourteen days after service of the objections. The parties are 13 | advised that failure to file objections within the specified time may waive the right to appeal the 14 | District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 | Dated: September 24, 2019 16 17 18 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 19 /DLB7; DB/Inbox/Substantive/grus2913.fr.dism 21 22 23 24 25 26 27 28