(HC) Suong v. Koenig ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 TYLER JAMES SUONG, Case No. 1:20-cv-00347-AWI-EPG-HC 11 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, DISMISSING 12 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 13 CRAIG KOENIG, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF 14 Respondent. APPEALABILITY 15 (ECF No. 6) 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. On April 1, 2020, the Magistrate Judge issued Findings and 19 Recommendation that recommended dismissing the petition as an unauthorized successive 20 petition. (ECF No. 6). On April 20, 2020, Petitioner filed timely objections. (ECF No. 8). 21 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 22 a de novo review of the case. Having carefully reviewed the entire file, including Petitioner’s 23 objections, the Court concludes that the Findings and Recommendation is supported by the 24 record and proper analysis. 25 In his objections, Petitioner contends that his petition is timely and ripe for relief because 26 he is attacking a recent state court decision that dismissed a petition for writ of coram nobis. 27 (ECF No. 8 at 2).1 The Court recognizes that “[h]abeas petitions that are filed second-in-time are 1 not necessarily second or successive.” Clayton v. Biter, 868 F.3d 840, 843 (9th Cir. 2017). For 2 example, “a habeas petition that challenges a new or intervening judgment is not a second or 3 successive petition even where the intervening judgment left in place an earlier challenged 4 conviction and sentence.” Id. at 843–44 (citing Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 5 2012)). However, the Court is unaware of any authority holding that a state court’s order 6 dismissing a petition for writ of coram nobis constitutes a new or intervening judgment from 7 which an otherwise successive habeas petition may be filed. The instant federal petition is not 8 challenging the state court decision that dismissed Petitioner’s petition for writ of coram nobis 9 but rather Petitioner’s underlying criminal judgment pursuant to which he is in custody. See 10 Magwood v. Patterson, 561 U.S. 320, 332–33 (2010) (“A § 2254 petitioner ‘seeks invalidation 11 (in whole or in part) of the judgment authorizing the prisoner’s confinement,’ . . . Thus, both § 12 2254(b)’s text and the relief it provides indicate that the phrase ‘second or successive’ must be 13 interpreted with respect to the judgment challenged.” (internal citation omitted)). 14 Petitioner also contends that he is actually innocent. (ECF No. 8 at 4). “[A]ctual 15 innocence, if proved, serves as a gateway through which a petitioner may pass whether the 16 impediment is a procedural bar . . . or . . . expiration of the statute of limitations.” McQuiggin v. 17 Perkins, 569 U.S. 383, 386 (2013). However, the actual innocence gateway does not abrogate 28 18 U.S.C. § 2244(b)(2)(B), the provision governing successive petitions. Gage v. Chappell, 793 19 F.3d 1159, 1168–69 (9th Cir. 2015). Even assuming that a freestanding actual innocence claim is 20 cognizable,2 Petitioner “does not meet the threshold requirement . . . that, in light of the new 21 evidence, no juror acting reasonably, would have voted to find him guilty beyond a reasonable 22 doubt.” Schlup v. Delo, 513 U.S. 298, 329 (1995) (emphasis added); see Jones v. Taylor, 763 23 F.3d 1242, 1247 (9th Cir. 2014) (“While we have not articulated the precise showing required, 24 we have discussed the standard for a freestanding actual innocence claim by reference to the 25 Schlup ‘gateway’ showing[.]”). Petitioner’s claim of actual innocence appears to be based on 26 transcripts from his 2007 criminal trial and various pretrial proceedings. However, such evidence 27 2 “We have not resolved whether a freestanding actual innocence claim is cognizable in a federal habeas corpus proceeding in the non-capital context, although we have assumed that such a claim is viable.” Jones v. Taylor, 763 1 is not new given that it consists of portions of the existing state court record that Petitioner has 2 had access to for several years. 3 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 4 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 5 Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). The controlling statute in determining 6 whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 7 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to 8 review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 9 (b) There shall be no right of appeal from a final order in a 10 proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a 11 criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 12 (c) (1) Unless a circuit justice or judge issues a certificate of 13 appealability, an appeal may not be taken to the court of appeals from– 14 (A) the final order in a habeas corpus proceeding in which 15 the detention complained of arises out of process issued by a State court; or 16 (B) the final order in a proceeding under section 2255. 17 (2) A certificate of appealability may issue under paragraph (1) 18 only if the applicant has made a substantial showing of the denial of a constitutional right. 19 (3) The certificate of appealability under paragraph (1) shall 20 indicate which specific issue or issues satisfy the showing required by paragraph (2). 21 22 28 U.S.C. § 2253. 23 If a court denies habeas relief on procedural grounds without reaching the underlying 24 constitutional claims, the court should issue a certificate of appealability “if jurists of reason 25 would find it debatable whether the petition states a valid claim of the denial of a constitutional 26 right and that jurists of reason would find it debatable whether the district court was correct in its 27 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 1 | could not conclude either that the district court erred in dismissing the petition or that the 2 | petitioner should be allowed to proceed further.” Id. 3 In the present case, reasonable jurists would not find the Court’s determination that 4 | Petitioner’s habeas petition should be dismissed debatable or wrong, or that Petitioner should be 5 | allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The Findings and Recommendation issued on April 1, 2020 (ECF No. 6) is 8 ADOPTED IN FULL; 9 2. The petition for writ of habeas corpus is DISMISSED; 10 3. The Clerk of Court is DIRECTED to CLOSE the case; and 11 4. The Court DECLINES to issue a certificate of appealability. 12 B IT IS SO ORDERED. 14 | Dated: _ December 4, 2020 —= Z : Cb it — SENIOR DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28