James v. Montgomery

TAUMU JAMES, Petitioner, v. WARREN L. MONTGOMERY, Warden, Respondent.

No. 2:20-cv-05651-SVW (SP)

United States District Court, C.D. California

September 1, 2021

MEMORANDUM AND ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

HONORABLE STEPHEN V. WILSON, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

On June 25, 2020, petitioner Taumn James filed a Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition"). Petitioner raises three grounds for relief, all based on the alleged ineffective assistance of his appellate counsel, to challenge his 2010 convictions in Los Angeles County Superior Court for home invasion robbery. Petitioner claims his counsel failed to raise certain arguments on appeal including: (1) a due process violation concerning impermissible inferences the jury drew from six-pack and in-court identifications; (2) a due process violation based on the trial court's failure to grant a new trial; and (3) a due process violation based on prosecutorial misconduct.

On July 7, 2020, the Court issued an Order to Show Cause Why Petition Should not Be Dismissed as Time-Barred and as Second or Successive ("OSC"). Among other things, the Court explained the Antiterrorism and Effective Death Penalty Act's ("AEDPA") statute of limitations and why it appeared the Petition was untimely. Specifically, the Court noted that October 16, 2012 appeared to be the latest date on which AEDPA's one-year limitation period could have started running, which made the Petition untimely by more than six years. The Court also explained the prohibition on filing second or successive petitions subject to certain exceptions and permission from the Ninth Circuit. The Court noted the Petition did not appear to meet any of the exceptions and petitioner failed to indicate whether he obtained permission from the Ninth Circuit to file it. The Court ordered petitioner to respond to the OSC by July 28 2020.

Petitioner filed a Response to Order to Show Cause on October 25, 2020. The Court granted him permission for this late filing.

After careful review and consideration, the Court finds the Petition is both impermissibly second or successive and time-barred. Consequently, the Petition will be dismissed with prejudice.

II. BACKGROUND

On August 12, 2010, a jury convicted petitioner of six counts of home invasion robbery and found true the allegations that he personally used a firearm, acted in concert in committing the crimes, and the crimes involved a juvenile victim. See Pet. at 2; Mem. in Supp. of Pet. at 2, 5. The trial court sentenced petitioner to 71 years in prison. Mem. in Supp. of Pet. at 6.

On or about February 9, 2011, petitioner appealed the trial court's judgment. See Pet. at 2-3; People v. James, No. B230771 (Cal.Ct.App.).^[1] Several months later on November 28, 2011, petitioner also filed a habeas petition in the California Court of Appeal. In re James, No. B237448 (Cal.Ct.App.). The Court of Appeal consolidated petitioner's direct appeal and habeas petition and, on April 23, 2012, affirmed the trial court's judgment with modifications and denied his habeas petition. See id.

On May 31, 2012, petitioner filed two petitions for review in the California Supreme Court. People v. James, No. S203002; In re James, No. S203003 (Cal.).^[2]The court denied both petitions on July 18, 2012. See id.

Petitioner then filed a federal habeas petition in this Court on October 10, 2013 in case number 2:13-cv-07523-SVW (SP). Pet. at 7. The Court denied the petition on its merits on November 22, 2016. Id. Petitioner appealed the Court's decision, and the Ninth Circuit affirmed the decision on April 25, 2018. Id. at 8. Petitioner filed a petition for writ of certiorari in the U.S. Supreme Court, which was denied on January 22, 2019. Id. at 5.

Petitioner states that on September 10, 2019, he filed a habeas petition in the Superior Court for Los Angeles County.^[3] Pet. at 4. The court denied the petition on October 4, 2019. Id. at 5. On January 21, 2020, petitioner filed another habeas petition in the California Court of Appeal. Lodg. Doc. No. 9. The court denied the petition on February 11, 2020. Id. Petitioner then filed a habeas petition in the California Supreme Court, which was denied on May 27, 2020. Lodg. Doc. No. 10.

A month later, on June 25, 2020, petitioner filed the instant federal habeas Petition.

III. DISCUSSION

A. The Court Lacks Jurisdiction Over This Second or Successive Petition

Under 28 U.S.C. § 2244(b)(2), any claim raised in a second or successive petition but not presented in a prior petition must be dismissed unless:

(A) the applicant shows that the claim relies on a new rate 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.

If the petitioner meets either of the above exceptions, he must additionally obtain an order by a panel of the appropriate court of appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A); see also Magwood v. Patterson, 561 U.S. 320, 331, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010).

In its OSC, the Court noted that it dismissed with prejudice petitioner's prior federal habeas petition challenging the same judgment challenged in this case. See James v. Soto, No. 2:13-cv-07523-SVW (SP). The Court considered petitioner's claims - related to those petitioner raises here but different because he did not previously allege ineffective assistance of counsel - and found they did not merit habeas relief. Accordingly, the instant Petition is second or successive.

In response to the OSC, petitioner argues he could not have discovered the factual predicate for his claims previously. As discussed below with respect to when the statute of limitations began running, petitioner's contention that he could not have previously discovered the factual predicate for his claims is not supported by the record. But even if he could meet the exception under § 2244(b)(2)(B), petitioner still would require permission from the Ninth Circuit to file a second federal habeas petition. In his OSC response, petitioner states he asked the Ninth Circuit for leave to file a second or successive habeas petition. OSC Resp. at 2, 11. Petitioner asks the Court to delay any ruling on the OSC until the Ninth Circuit has ruled on his application for leave. Id. at 2.

AEDPA clearly states that petitioners must ask the Ninth Circuit for permission to file a second or successive petition before filing the petition in the district court. 28 U.S.C. § 2244(b)(3)(A). Here, petitioner impermissibly filed this Petition on June 25, 2020 and waited until October 26, 2020 to file his application for permission with the Ninth Circuit. See James v. Montgomery, No. 20-73168 (9th Cir.)^[4]; Miller v. Fisher, 2016 WL 3982333, at *4 (CD. Cal. July 1, 2016) ("[D]istrict courts have routinely denied stay requests from petitioners who belatedly seek leave from an appellate court to file a successive petition because the district court lacks jurisdiction even to entertain the stay request"). Moreover, the Ninth Circuit denied petitioner's application on December 11, 2020. James, No. 20-73168. Thus, petitioner lacked the requisite permission to bring this Petition when he filed it, and still lacks such permission.

For these reasons, the Court does not have jurisdiction to consider petitioner's second or successive Petition under 28 U.S.C. § 2244(b)(2).

B. The Petition Is Also Untimely Under AEDPA's One-Year Statute of Limitations

AEDPA mandates that a "1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1); see also Lawrence v. Florida, 549 U.S. 327, 329, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007); Laws v. Lamarque, 351 F.3d 919, 921 (9th Cir. 2003). After the one-year limitation period expires, the prisoner's "ability to challenge the lawfulness of [his] incarceration is permanently foreclosed." Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002).

To assess whether a petition is timely filed under AEDPA, it is essential to determine when AEDPA's limitation period starts and ends. By statute, AEDPA's limitation period begins to ran from the latest of four possible events:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to eases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). Ordinarily, the starting date of the limitation period is the date on which the judgment becomes final after the conclusion of direct review or the time passes for seeking direct review. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001).

AEDPA also allows for...