Opinion
Case No. LA CV 18-09213-VBF-AS
11-08-2018
STEVEN CIOTTA, Petitioner, v. S. FRAUENHEIM, Respondent.
ORDER
Dismissing the Action Without Prejudice and Referring the Habeas Petition to the Ninth Circuit; Directing Separate Judgment; Terminating the Case (JS-6)
Procedural History. On October 26, 2018, Steven Ciotta ("Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition"). See CM/ECF Document ("Doc") 1. Petitioner appears to be challenging the sentence he received for 1988 convictions in Los Angeles County Superior Court Case No. A575551: 25 years to life without parole plus a concurrent life sentence. Although petitioner's allegations are mostly unintelligible, the sole discernible claim asserted in the petition is that petitioner is being held in custody in violation of the United States Constitution, the California Constitution, and California laws. See Doc 1 at 5, Memorandum of Points and Authorities at 3-18. Although Petitioner attempts to characterize his claim as a parole-related claim, it appears that his claim is actually a challenge to his sentence.
The Prior Federal Habeas Action, Ciotta v. Holland. On December 11, 2012, petitioner filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, challenging the same convictions. See Steven Ciotta v. K. Holland (Warden), Case No. LA CV 12-10593-GHK-AS Doc.1 ("the prior habeas action"). On June 17, 2014, the district court issued an Order denying that habeas petition and dismissing the petition with prejudice based on its untimeliness, and entered final judgment in favor of the respondent warden. See 12-10593 Docs 52-53. Also on June 17, 1994, the district court issued an Order (12-10593 Doc 54) denying petitioner a Certificate of Appealability ("COA"). On January 15, 2015, the Court of Appeals issued an Order (12-10593 Doc 59) likewise denying petitioner's request for a COA.
On August 14, 2015, the district court issued an Order (12-10593 Doc 66) denying Petitioner's Motion for Relief from Judgment. On September 25, 2015, the district court denied petitioner's motion for a COA to appeal from that Order, see 12-10593 Doc 69. On November 3, 2015, the Ninth Circuit Court of Appeals denied petitioner's request for a COA as well, see 12-10593 Doc 72.
On March 23, 2016, following the Ninth Circuit's remand to the district court for the limited purpose of granting or denying a COA from the denial of Petitioner's motion for leave to file an amended complaint, see 12-10593 Doc 73, the district court issued an order denying a COA, see 12-10593 Doc 74. On May 19, 2016, the Circuit likewise denied petitioner's request for a COA, see 12-10593 Doc 75.
Beginning on February 23, 2017, and continuing to June 13, 2018, Petitioner filed three additional Motions for Relief from Judgment in Ciotta v. Holland, see see 12-10593 Docs 80, 89, 100. The district court denied these motions and issued orders denying a COA as to each denial, see 12-10593 Docs 82, 86, 90, 92, and 102-03. The Circuit subsequently denied petitioner's request for a COA to appeal the denial of those three FRCP 60(b) motions, see 12-10593 Docs 88, 95, and 106
ANALYSIS. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), enacted on April 24, 1996, provides in pertinent part that:
(a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention 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 a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in §2255.
(b) (1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B) (I) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(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 convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.
(3) (A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.
( c ) The court of appeals may authorize the filing of a second or
successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.
(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 filing of the motion.
(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 shall not be the subject of a Petition for Rehearing or for a Writ of Certiorari.
28 U.S.C. § 2244.
(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.
Title 28 U.S.C. § 2244(b)(3) "creates a 'gatekeeping' mechanism for the consideration of second or successive applications in district court. The prospective applicant must file in the court of appeals a motion for leave to file a second or successive habeas application in the district court. " Felker v. Turpin, 518 U.S. 651, 657, 116 S. Ct. 2333 (1996) (citing 28 U.S.C. § 2244(b)(3)(A)).
The instant petition and the prior habeas action both challenge the same 1988 L.A. County Superior Court judgment. Accordingly, the new petition filed October 26, 2018 is a second or successive petition for purposes of 28 U.S.C. § 2244. Therefore, Petitioner was required to obtain authorization from the Court of Appeals before filing the petition here. See 28 U.S.C. §2244(b)(3)(A). Petitioner presents no evidence or even allegation that he has obtained such authorization.
Moreover, petitioner has not borne his burden of showing that the claim in the instant Petition qualifies for one of the statutory exceptions to the bar on second-or-successive petitions. Petitioner does not allege that the claim is based on newly discovered facts or on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Tyler v. Cain, 533 U.S. 656, 662, 121 S. Ct. 2478 (2001).
However, this determination must be made by the U.S. Court of Appeals upon a petitioner's motion for an order authorizing the district court to consider his second or successive petition. See 28 U.S.C. § 2244(b); see also Burton v. Stewart, 549 U.S. 147, 157, 127 S. Ct. 793 (2007) (where petitioner did not receive authorization from Court of Appeals before filing the second or successive petition, "the District Court was without jurisdiction to entertain [the petition]"); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000). Because Petitioner has not obtained authorization from the Circuit, the Court cannot entertain the habeas petition.
Instead of adjudicating the petition, then, the Court will refer it to the United States Court of Appeals for the Ninth Circuit pursuant to that court's Rule 22-3(a). See Burts v. Hatton, 2018 WL 3435397, *1 (C.D. Cal. July 13, 2018) (Dean Pregerson, Sr. J.), appeal filed, No. 18-56046 (9th Cir. Aug. 1, 2018); Thomas v. Asuncion, 2018 WL 4027105, *2 (C.D. Cal. Aug. 20, 2018) (Christina Snyder, J.) (citing Cielto v. Hedgpeth, 2014 WL 1801110 (C.D. Cal. Apr. 23, 2014) (Fairbank, J.). Ninth Circuit Rule 22-3(a) provides in its entirety as follows:
An applicant seeking authorization to file a second or successive 28 U.S.C. section 2254 petition or 28 U.S.C. § 2255 motion in the district court must file an application in the Court of Appeals demonstrating entitlement to such leave under sections 2254 or 2255. See Form 12. An original in paper format of the application must be filed . . . unless the application is submitted via Appellate CM/ECF. No filing fee is required.Ninth Cir. R. 22-3(a) (last rev. July 1, 2016) (emphasis added). The Court finds that it is in the interests of justice and efficiency to refer this petition to the Circuit.
If an application for authorization to file a second or successive section 2254 petition or section 2255 motion is mistakenly submitted to the district court, the district court shall refer it to the court of appeals.
If an unauthorized second or successive section 2254 petition or section 2255 motion is submitted to the district court, the district court may, in the interests of justice, refer it to the Court of Appeals.
The question arises whether the Court can both "refer" this petition to the Circuit and dismiss the action without prejudice. "'Perceiving no legal or practical conflict between these two courses of action, the Court will continue its . . . practice of both dismissing the petition and referring it . . . .'" Taylor v. Gonzales, 2014 WL 4826167, *3 (C.D. Cal. Aug. 27, 2014). "This is consistent with the practice of many other judges in our district in recent years." Robert J. Garcia v. L.A. County Superior Court, No. LA CV 18-03864 Doc. 3 at 5-6 (C.D. Cal. May 18, 2018) (collecting cases where Central District of California district and magistrate judges both referred a successive habeas petition to the Ninth Circuit and dismissed the action without prejudice for lack of subject-matter jurisdiction).
ORDER
The Petition for a Writ of Habeas Corpus is DISMISSED without prejudice to its re-filing here after petitioner obtains permission to file it here from the United States Court of Appeals for the Ninth Circuit.
Pursuant to Ninth Circuit Rule 22-3(a), the Court hereby REFERS this habeas petition to the U.S. Court of Appeals for the Ninth Circuit for consideration as an application for leave to file second-or-successive habeas corpus claims.
"Petitioner is advised that this referral alone does not constitute compliance with Circuit Rule 22-3 and 28 U.S.C. § 2255(h). Petitioner must still file a motion for leave to proceed in the Court of Appeals and make the requisite showing" to convince the Ninth Circuit to grant him leave to file this second-or-successive habeas petition." Henderson v. Madden, No. LA CV 16-2003-VBF-AGR Doc 5 at 13 with n.4 (C.D. Cal. June 3, 2016) (collecting cases where Ninth Circuit district courts issued this advisement to pro se habeas petitioners). Petitioner is directed to consult this statute and Ninth Circuit Rule 22-3 for further information.
Larue v. Washington State Dep't of Corrections, 2008 WL 5245980, *1 (E.D. Wash. Dec. 15, 2008) (Suko, J., adopting recommendation of Hutton, M.J.).
The Clerk of Court SHALL SEND a copy of the habeas corpus petition and a copy of this Order to the U.S. Court of Appeals for the Ninth Circuit.
The Clerk SHALL MAIL petitioner a copy of Ninth Cir. Rule 22-3 and Ninth Circuit Court of Appeals Form 12 - Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255 , which is available at http://www.ca9.uscourts.gov/forms/.
See US v. Garcia, 2018 WL 3655661, *2 (E.D. Cal. Aug. 2, 2018) (Kimberly Mueller, J.); Walker v. Ryan, 2014 WL 413055, *2 (D. Ariz. Feb. 4, 2014). --------
The Court will rule on a certificate of appealability by separate Order.
As required by Fed. R. Civ. P. 58(a), judgment will be entered separately.
IT IS SO ORDERED. Dated: November 8, 2018
/s/_________
VALERIE BAKER FAIRBANK
Senior United States District Judge