Deleon v. Phillips ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALEJANDRO A DELEON, Case No. 23-cv-01862-HSG 8 Petitioner, ORDER DENYING LEAVE TO FILE AMENDED PETITION 9 v. Re: Dkt. No. 12 10 BRYAN D PHILLIPS, 11 Respondent. 12 13 Petitioner, an inmate housed at California State Prison – Corcoran, Substance Abuse 14 Treatment Facility, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 15 For the reasons set forth below, the Court DENIES as moot Petitioner’s request for leave to file an 16 amended petition. Dkt. No. 12. 17 DISCUSSION 18 I. Background 19 Petitioner commenced this action on or about April 17, 2023, by filing the petition for a 20 writ of habeas corpus pursuant to 28 U.S.C. § 2254 docketed at Dkt. No. 1. In the petition, 21 Petitioner specified that he was challenging the sentence imposed by the San Mateo County 22 Superior Court in C No. 16-NF-01144-A. Dkt. No. 1 at 1. Petitioner reported that the sentence 23 was “25 years to life (25L) Gun enhancement.” Dkt. No. 1 at 1. The petition listed only one 24 claim for relief: 25 Claim One: 12022.53(d) Gun Enhancement. Excessive time I got 25 years to life for using a Gun, but got 15 years to life for second degree murder, I got more time for the 26 Gun - I think Both trial and the courts of appeal made a error. I (Defendant) even ask 27 Judge Richard DuBois to drop the 25 years to life enhancement under SB620 - I feel like the Right to Due Process (fair) sentence was Just Denied, Im already 1 sentence to life for Second Degree murder! 2 - Before January 1, 2018. Section 1202253 prohibited courts from striking its enhancements. 3 - People v. Monroe [2023] 4 Supporting facts: SB620 – SB. 1393 – SB 483. And 1172.75 P.C. 1385(b)(1). 5 Section 1385 Provides that Court may “in furtherance of Justice, order an action to be dismissed.” (Id., subd. (a).) Though section 1385 literally authorizes the dismissal of “an 6 action,” it has been construed to permit the dismissal of parts of an action. My Right to a Due Process (fair) sentence was denied. 7 Dkt. No. 1 at 5, 6. 8 On May 8, 2023, Petitioner filed a letter with the Court stating that he had filed two habeas 9 petitions: one challenging his second degree murder conviction and the other challenging his 10 sentence for the gun enhancement; and that he had only received a case number for the petition 11 challenging his second degree murder conviction, C No. 23-cv-1862. Dkt. No. 5. Petitioner 12 requested another blank petition for a writ of habeas corpus form so that he could file a separate 13 habeas petition challenging his sentence for the gun enhancement. Dkt. No. 5. 14 On June 16, 2023, the Court received another habeas petition from Petitioner, which was 15 opened as a new case, C No. 23-cv-2965. See C No. 23-cv-2965 HSG, Deleon v. Phillips 16 (“Deleon II”), Dkt. No. 1. The habeas petition in Deleon II is identical to the habeas petition filed 17 in this action. Compare Deleon I, Dkt. No. 1 with Deleon II, Dkt. No. 1. 18 On June 27, 2023, the Court ordered Respondent to respond to the habeas petition filed in 19 this action and show cause why a writ of habeas corpus should not be granted based on 20 Petitioner’s cognizable claims. Dkt. No. 6. 21 On July 12, 2023, the Clerk’s Office staff informed Petitioner via letter that he had two 22 habeas actions pending in this court: this action, C No. 23-cv-01862 HSG (“Deleon I”), and 23 Deleon I. The letter noted that the petition in Deleon II appeared to be a duplicate of the petition 24 filed in this action. The letter requested that Petitioner confirm whether he intended to file a 25 duplicate petition in Deleon II. Dkt. No. 10. 26 On July 28, 2023, the Court administratively closed Deleon II, as required by Woods v. 27 Carey, 525 F.3d 886, 887–90 (9th Cir. 2008). Deleon II, Dkt. No. 7. In Woods, the Ninth Circuit 1 held that when a pro se petitioner files a new petition while an earlier-filed petition is still 2 pending, the district court must construe the new petition as a motion to amend the pending 3 petition rather than as an unauthorized second or successive petition. The Court directed the Clerk 4 to construe the initial petition in Deleon II as a request for leave to file an amended petition and to 5 file the request in Deleon I. Deleon II, Dkt. No. 7; see also Deleon I, Dkt. No. 12. 6 On August 1, 2023, Petitioner filed a letter with the Court stating that there was a 7 misunderstanding. He stated that he seeks to file two habeas petitions: a “murder petition” 8 challenging the 15 years-to-life murder conviction and a “gun enhancement petition” challenging 9 the 25 years to life gun enhancement conviction; and that both petitions have the same argument. 10 Dkt. No. 13. Petitioner requested a status update on C No. 23-cv-02965. Id. 11 II. Request for Leave to Amended Petition 12 The Clerk has docketed the Deleon II petition in this action as a proposed amended 13 petition, which the Court construes as a request for leave to file an amended petition. Dkt. No. 12. 14 Petitioner has informed the Court that the proposed amended petition, Dkt. No. 12, is identical to 15 the petition filed in this case, Dkt. No. 1, with the only distinction being that Dkt. No. 1 challenges 16 Petitioner’s second-degree murder conviction and Dkt. No. 12 challenges Petitioner’s gun 17 enhancement conviction. As explained below, because the second-degree murder conviction and 18 gun enhancement conviction arise from the same judgment, Petitioner must challenge both 19 convictions in Deleon I. The Court DENIES as moot the request for leave to file an amended 20 petition because the amended petition is identical to the operative petition. Dkt. No. 12. 21 Petitioner is in custody pursuant to a conviction for second-degree murder (Cal. Penal 22 Code § 187(a)) and possession of a firearm as a felon (Cal. Penal Code § 29800(a)(1)), and an 23 enhancement for personal use of a firearm causing death (Cal. Penal Code § 12022.53(d)), and 24 was sentenced to a total indeterminate prison term of 42 years to life. The overall 42 years to life 25 sentence was composed in part of (1) 15 years to life for the second degree murder conviction and 26 (2) a consecutive term of 25 years to life for the firearm enhancement. See People v. Deleon, C 27 No. A159925, 2022 WL 2127592, *1, *8 (Cal. Ct. App. Jun. 14, 2022). Although the second- 1 both the second-degree murder conviction and the firearm enhancement conviction are part of the 2 same overall conviction and judgment. 3 The Court therefore administratively closed C No. 23-cv-02965, Deleon II, because Deleon 4 I and Deleon II challenge the same judgment and raise the same argument. 5 Because the second-degree murder conviction, the felon in possession of a firearm 6 conviction, the gun enhancement conviction all arise from the same judgment, Petitioner is 7 required to present challenges to any of these convictions and/or the related sentences in the same 8 habeas petition, with certain exceptions not applicable here. 28 U.S.C. § 2244(b)(2).1 Petitioner 9 need not, and should not, file separate habeas petitions to challenge the second-degree murder 10 conviction and the firearm enhancement conviction. 11 Deleon II presents the same claim as Deleon I. 28 U.S.C. § 2244(b)(1) requires that 12 Deleon II be summarily dismissed pursuant to 28 U.S.C. § 2244(b)(1) because Deleon II presents 13 a claim in a second or successive habeas petition that had been previously presented in a prior 14 habeas petition (Deleon I). However, because Deleon I was pending at the time Deleon II was 15 filed, instead of summary dismissal, the Court was required to construe the new petition filed in 16 Deleon II as a motion to amend the pending petition in Deleon I. Because Deleon I brings the 17 same challenge to the second-degree murder conviction as Deleon II brings to the firearm 18 enhancement conviction – that the failure to drop the firearm enhancement violated his due 19 process rights – this action alone suffices to challenge both convictions.2 20 // 21 // 22 23 1 28 U.S.C. § 2244(b)(2) provides that a petitioner may present a claim in a second or successive habeas petition that was not presented in a prior petition if (1) the claim relies on a new rule of 24 constitutional law made retroactive to cases on collateral review by Supreme Court that was previously unavailable, or (2) if the factual predicate for the claim could not have been discovered 25 previously though the exercise of due diligence, and 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 conviction 26 evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2). 27 2 The Court notes that Petitioner’s argument challenges only the sentence for the firearm 1 CONCLUSION 2 For the reasons set forth above, the request for leave to file an amended petition is 3 DENIED as moot because the amended petition is identical to the operative petition. Dkt. No. 12. 4 || The briefing schedule remains unchanged. 5 This order terminates Dkt. No. 12. 6 IT IS SO ORDERED. 7q Dated: 12/8/2023 8 . ° nandon S. GILLIAM, JR. it 9 United States District Judge 10 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28