(HC) Henry v. Burton ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT HENRY, No. 2:22-CV-0609 KJM DB 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROBERT BURTON, 15 Respondent. 16 17 Petitioner Robert Henry, a state prisoner, proceeds pro se and in forma pauperis with a 18 petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a judgment of 19 conviction for murder entered in 1986 in the Solano County Superior Court. For the reasons set 20 forth below, this Court recommends dismissing the petition for lack of jurisdiction. 21 I. Background 22 In 1986, a jury convicted petitioner of first degree murder on theories or aiding and 23 abetting and transferred intent. (ECF No. 13-5 at 226.) The jury also found as true special 24 allegations that petitioner was armed with a firearm during the offenses and carried out the 25 murder intentionally and for financial gain. The trial court sentenced him to life imprisonment 26 without the possibility of parole. (Id.) 27 In 1988, the state appellate court affirmed the judgment. (ECF No. 13-3 at Ex. 1.) 28 Petitioner sought review in the California Supreme Court, which denied his petition for review 1 and petition for state habeas corpus. (Id. at Exs. 2 & 3.) 2 In 1994, petitioner filed a federal habeas petition. Following remand from the Ninth 3 Circuit, the district court held an evidentiary hearing in April 2009 to address whether petitioner 4 had a freestanding claim of actual innocence and whether petitioner’s newly discovered evidence 5 would suggest that his claim is credible. See Henry v. Marshall, 224 F. App’x 635, 637 (9th Cir. 6 2007); Henry v. Marshall, No. CIV S-94-0916 JKS EFB P, 2010 WL 2179896 (E.D. Cal. May 7 27, 2010). The district court found that “petitioner’s newly discovered evidence is not credible 8 and that petitioner has not met his burden of affirmatively proving that he is probably innocent,” 9 recommending that his habeas petition be denied. Id. The district judge adopted the findings and 10 recommendations in full, and the Ninth Circuit denied petitioner’s requests for certificate of 11 appealability and to file a second or successive habeas corpus petition. See Order, Henry v. 12 Marshall, No. 12-70618, (9th Cir. May 8, 2012), ECF No. 2; Order, Henry v. Marshall, No. 10- 13 17206, (9th Cir. May 15, 2012), ECF No. 7. 14 In January 2013, petitioner filed a habeas petition in the Solano County Superior Court, 15 claiming that new evidence discovered in the 2009 evidentiary hearing held by the United States 16 District Court for the Eastern District of California supports that Brewer intentionally shot and 17 killed Johnson for his own motives. (ECF No. 13-4 at 234–35.) The state court denied the claim 18 as untimely and for failing to state a prima facie case for relief. (Id.) He subsequently filed a 19 second habeas petition before the same court in October 2016, which the court denied as 20 successive. (Id. at 236–38.) 21 In October 2017, petitioner filed a third state habeas petition, restating his prior claims and 22 arguing that he is also entitled to relief under recently amended California Penal Code section 23 1473 regarding newly discovered evidence. (ECF No. 13-4 at Ex. 4.) The state court issued an 24 order to show cause addressing petitioner’s claims and ordered an evidentiary hearing.1 (Id. at 25 1 “At the evidentiary hearing, Petitioner presented testimony from Jeffrey Taggart and took the 26 stand himself to testify. Additionally, Petitioner submitted the former testimony of Pamela 27 Conyers and Charles Austin from the trial of Francis Lee Brewer, excerpts of the testimony of Francis Lee Brewer from Petitioner’s 2009 Federal Court hearing, transcript notes of Detective 28 Bawart’s interview of Jeffrey Taggert, portions of the testimony of Detective Bawart and the 1 264–65, 331–32.) The state court denied habeas relief, finding that most of the evidence was not 2 new and not credible. (Id. at 540–43.) “The enhanced audio tape of the interview of Jeffrey 3 Taggert is new evidence, but does not substantially alter the substance of his original trial 4 testimony implicating Petitioner and his role in the death of Andre Johnson.” (Id. at 542.) 5 In 2020, petitioner filed a state habeas petition in the California Court of Appeal. (ECF 6 No. 13-5 at Exs. 5 & 6.) The state court denied relief. (ECF No. 13-5 at 226–49); In re Robert 7 Henry, No. A160596, 2021 WL 4451345 (Cal. Ct. App. Sept. 29, 2021). Petitioner filed a state 8 habeas petition in the California Supreme Court, which the court denied. (ECF No. 13-5 at Exs. 7 9 & 8.) 10 He filed the present habeas petition on April 4, 2022. (ECF No. 1.) Respondent filed an 11 answer. (ECF No. 13.) Petitioner filed a traverse. (ECF No. 14.) 12 II. Analysis 13 The Antiterrorism and Effective Death Penalty Act imposes strict requirements on when 14 state prisoners can bring second or successive petitions to challenge being in custody under a state 15 court judgment. See 28 U.S.C. §§ 2244(b), 2254(a); Burton v. Stewart, 549 U.S. 147, 152-53 16 (2007) (per curiam). A petitioner must obtain an order from the court of appeals authorizing a 17 second or successive habeas petition before filing the petition in the district court. See 28 U.S.C. 18 § 2244(b)(3)(A); Magwood v. Patterson, 561 U.S. 320, 330–31 (2010). “A habeas petition is 19 second or successive only if it raises claims that were or could have been adjudicated on the 20 merits.” McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). “[A] claim ‘is successive if the 21 basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is 22 supported by new and different legal arguments ... [or] proved by different factual allegations.’” 23 Hooper v. Shinn, 56 F.4th 627, 633-34 (9th Cir. 2022) (internal citations omitted). Without an 24 People’s closing arguments from his own trial, and an enhanced audio recording of the same 25 interview between Detective Bawart and Jeffrey Taggert in support his claim. The Respondent submitted two photographs of autos connected with the subject incident, a cassette tape of an 26 interview between Detective Bawart and Petitioner at the time of arrest, and full transcripts of 27 testimony of Francis Lee Brewer and Petitioner from the same 2009 Federal hearing. Both Petitioner and Respondent further agreed that the transcripts from Petitioner’s 1986 jury trial 28 could be considered in its entirety by the Court.” (ECF No. 13-4 at 540–41.) 1 order from the court of appeals, the district court does not have jurisdiction to consider a second 2 or successive habeas petition. Burton, 549 U.S. at 152; Ybarra v. Filson, 869 F.3d 1016, 1022 3 (9th Cir. 2017). And even after obtaining leave, “a claim presented in a second or successive 4 petition that was not presented in a prior application ‘shall be dismissed unless’ certain criteria are 5 met.” Gonzalez v. Sherman, 873 F.3d 763, 767 (9th Cir. 2017). “Even if a petitioner can 6 demonstrate that he qualifies for one of these exceptions, he must seek authorization from the 7 court of appeals before filing his new petition with the district court.” Woods v. Carey, 525 F.3d 8 886, 888 (9th Cir. 2008). 9 Petitioner’s first federal habeas petition, filed in 1994, challenged being held in custody 10 pursuant to 1986 state court judgment. After an evidentiary hearing, the district court denied the 11 petition on the merits. See Henry, 2010 WL 2179896 (E.D. Cal. May 27, 2010). His current 12 federal habeas petition, filed in 2022, also contests the same state court judgment. See Gonzalez 13 v. Crosby, 545 U.S. 524, 530 (2005). Because petitioner was required to seek and obtain 14 authorization from the Ninth Circuit before filing this petition, but failed to do so, this Court lacks 15 jurisdiction to consider it. Absent such authorization, the instant habeas petition must be 16 dismissed without prejudice. 17 III. Conclusion 18 For the reasons set forth above, IT IS HEREBY RECOMMENDED that the petition be 19 dismissed for lack of jurisdiction. 20 These findings and recommendations will be submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. The document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 25 shall be served on all parties and filed with the court within seven (7) days after service of the 26 objections. Failure to file objections within the specified time may waive the right to appeal the 27 District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 28 F.2d 1153 (9th Cir. 1991). In the objections, the party may address whether a certificate of 1 | appealability should issue in the event an appeal of the judgment in this case is filed. See Rule 11, 2 | Rules Governing § 2254 Cases (the district court must issue or deny a certificate of appealability 3 | when it enters a final order adverse to the applicant). 4 | Dated: June 29, 2023 5 6 pon no jur ONETED STATS ag JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28