Garcia v. Busby, LA CV 14-04224-VBF-PLA

ROBERT JOHN GARCIA, Petitioner, v. TIMOTHY BUSBY (Warden) et al., Respondents.

No. LA CV 14-04224-VBF-PLA

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

DATED: June 17, 2014

OPINION AND ORDER

Referring Habeas Petition to Ninth Circuit in

Compliance with Ninth Circuit Rule 22-3;

Dismissing Successive Habeas Petition without

Prejudice for Lack of Jurisdiction;

Denying a Certificate of Appealability

Proceeding pro se, Robert John Garcia ("petitioner") filed this petition for a writ of habeas corpus ("petition") pursuant to 28 U.S.C. § 2254. As best as the Court can discern, the petition challenges petitioner's 1973 state murder conviction, as well as some aspect of this Court's actions with regard to petitioner's 2002 habeas petition, in Case No. CV 02-4413-AHS (CT) ("2002 Petition"). (Pet. at 2, 5). In 1978, petitioner filed his first habeas petition in this Court, Case No. CV 78-2414-LEW (T), in which petitioner challenged the same 1973 conviction. (See Judgment in Case No. CV 78-2414-LEW (T)). The 1978 Petition was dismissed on the merits and the judgment was affirmed on appeal. (See Case No. CV 07-7459-AHS (CT), Document ("Doc") No. 3, at 2). Subsequently, petitioner has filed numerous additional habeas petitions in this Court, with the instant petition being at least the twentieth.¹

A federal habeas petition is second or successive if it raises claims that were adjudicated on their merits or could have been adjudicated on their merits in a previous federal habeas petition. See McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam). "A disposition is 'on the merits' if the district court either considers and rejects the claims or determines that the underlying claim will not be considered by a federal court." McNabb, 576 F.3d at 1029. In addition, a dismissal of a habeas claim due to untimeliness constitutes an adjudication on the merits for purposes of AEDPA's second-or-successive petition provisions. See Cielto v. Hedgpeth, 2014 WL 1801110, *2 with n.2 (C.D. Cal. Apr. 23, 2014) (Fairbank, J.) (citing, inter alia, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228, 115 S. Ct. 1447 (1995) ("The rules of finality, both statutory and judge[-]made, treat a dismissal on statute-of-limitations grounds the same way they treat a dismissal for failure to state a claim,for failure to prove substantive liability, or for failure to prosecute: as a judgment on the merits.") (citing, inter alia, US v. Oppenheimer, 242 U.S. 85, 87-88, 37 S. Ct. 68 (1916))).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that a claim presented in a second or successive federal habeas petition that was not presented in a prior petition 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 factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2)(A) and (B).

Furthermore, "[b]efore a second or successive application . . . 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." 28 U.S.C. § 2244(b)(3)(A). Petitioner's 1978 petition was dismissed on the merits in 1982. (See No. CV 07-7459-AHS (CT), Doc 3 at 2). In November 1981, the Ninth Circuit considered on appeal an earlier dismissal of the same petition and affirmed the District Court on two issues on the merits and remanded one issue, id. In August 1983, the Ninth Circuit affirmed the District Court's final dismissal on the merits, id. In petitioner's 2002 petition, the Court entered judgment dismissing the petition without prejudice because it was a successive petition and petitioner had not obtained leave to file from the Ninth Circuit, id. at 2-3. On December 2, 2002, the Ninth Circuit denied petitioner's request for a COA, id. at 3.

In the instant petition, petitioner appears to challenge the same 1973 conviction challenged in his 1978 petition, asserting that evidence was "illegally presented" at trial and that he was "erroneously prosecute[d]." Pet.'s Supp. Mem. at 3. He also asserts that, in proceedings on his 2002 petition, he was not afforded an evidentiary hearing "in accordance to the Standards of Review in 28 U.S.C. 2244(b)(2); 28 U.S.C. 2244(B)(3)(e); and as Ordered by the . . . Ninth Circuit in C.A. Case No. 06-55573[.]" Pet. at 5.

First, to the extent that petitioner seeks to challenge the 1973 conviction, even if he has raised different claims in this petition than those raised in his earlier petitions, such claims -- which relate to events that took place during trial could have been raised in his 1978 petition. Given that the 1978 petition was adjudicated on the merits and dismissed with prejudice, each claim in the instant petition is successive.

Next, to the extent petitioner is challenging any aspect of the proceedings related to his 2002 petition (Case No. CV 02-4413-AHS (CT)),² that action on remand was transferred to the Southern District of California on March 28, 2005. (See 2002 Petition, Docket No. 41). The instant petition contains no basis for challenging any aspect of that action here, especially more than eight years after the transfer.

Because petitioner has not presented any documentation showing that he has received the requisite authorization to file a successive petition from the Ninth Circuit, the Court concludes that it is without jurisdiction to entertain the instant petition under 28 U.S.C. § 2244(b). See Burton v. Stewart, 549 U.S. 147, 153, 127 S. Ct. 793, 798 (2007); Cooper, 274 F.3d at 1274 ("'When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.'"). Absent the requisite authorization from the Ninth Circuit allowing a successive petition, the instant petition must be dismissed without prejudice. See, e.g., Reyes v. Vaughn, 276 F.Supp.2d 1027, 1029-30 (C.D. Cal. 2003); Malave v. US, 134 F. Supp.2d 1019, 1022 (E.D. Wis. 2001) ("Since the Court of Appeals has not authorized this Court to consider a second or successive 2255 petition by Malave, the Court has no choice but to dismiss the instant petition.") (n.4 omitted), app. dis. (7th Cir. Aug. 20, 2001).

THIS HABEAS PETITION MUST BE "REFERRED" TO THE NINTH CIRCUIT

Ninth Circuit Rule 22-3(a) clearly states, in pertinent part, that "[i]f a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals." Emphasis added.

It is a venerable principle of construction that the word "shall" indicates that the action is mandatory, not optional or discretionary. Recently the Supreme Court unanimously referred to "the mandatory word 'shall.'" See Sebelius v. Auburn Regional Med. Ctr., - U.S. -, 133 S. Ct. 817, 824 (2013); see also Gonzales v. Thaler, - U.S. -, 132 S. Ct. 641 (2012) (the word "shall" in 28 U.S.C. § 2253(c)(3) underscores the mandatory nature of that provision); Nat'l Ass'n of Homebuilders v. Defenders of Wildlife, 544 U.S. 644, 661, 127 S. Ct. 2518, 2531 (2007) ("Section 402(a) of the CWA provides, without qualification, that the EPA 'shall approve' a transfer application unless it determines that . . . . By its terms, the statutory language is mandatory . . . ."); US v. Carter, 742 F.3d 440, 446 (9th Cir. 2014) ("[B]y using the words 'shall order' in a forfeiture statute, 'Congress could not have chosen stronger words to express its intent that forfeiture be mandatory in cases where the statute applied'") (quoting US v. Monsanto, 491 U.S. 600, 607, 109 S. Ct. 2657 (1989)); US v. Chavez, 627 F.2d 953, 954-55 (9th Cir. 1980) (the structure of the statute "and the use of the word 'shall' compel the conclusion that the provision is mandatory.").

Our Circuit has consistently applied this rule of construction, stating that "use of the words 'any' and 'shall' indicate that [a provision] is not permissive," In re HP Inkjet Printer Litig., 716 F.3d 1173, 1181 (9th Cir. 2013) (citing, inter alia, Alabama v. Bozeman, 533 U.S. 146, 153, 121 S. Ct. 2079 (2001) ("The word 'shall' ordinarily is the language of command.") (quoting Escoe v. Zerbst, 295 U.S. 490, 493, 55 S. Ct. 818 (1935))), and district courts in our circuit naturally have followed suit. See, e.g., Krangel v. Crown, 791 F. Supp. 1436, 1440 (S.D. Cal.) (referring to "the word 'shall,' a clearly mandatory term, . . . ."), app. denied, 968 F.2d 914 (9th Cir. 1992); William v. Board of Prison Terms, 2006 WL 463128, *3 (E.D. Cal. Feb. 24, 2006) ("What the Court found significant in the Nebraska statute and later . . . in the Montana parole statutes, was mandatory language: the use of the word 'shall' . . . .") (citations omitted), R&R adopted, 2006 WL 845594 (E.D. Cal. Mar. 30, 2006). Accord Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 112 (2012) ("The traditional, commonly repeatedly rule [of construction] is that 'shall' is mandatory . . . .").

The Supreme Court has"noted Congress's 'use of a mandatory shall to impose discretionless obligations[.]" Nat'l Ass'n of Homebuilders, 544 U.S. at 661, 127 S. Ct. at 2531 (quoting Lopez v. Davis, 531 U.S. 230, 241, 121 S. Ct. 714 (2001)); accord Ass'n of Civilian Technicians v. FLRA, 22 F.3d 1150, 1153 (D.C. Cir. 1994) ("The word 'shall'...