# Vincent Price McCowan v. Tomlinson

> District Court, C.D. California · July 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10038544

## Case

- **Court:** District Court, C.D. California
- **Decided:** July 20, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10038544

## How later opinions describe it (automated extraction)

- holding that dismissal of a habeas petition as time barred 19 under 28 U.S.C. § 2244(d)(1) constitutes a disposition on the merits and renders a 20 subsequent petition second or successive for purposes of 28 U.S.C. § 2244(b)

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 VINCENT PRICE McCOWAN, ) Case No. CV 20-2535-CAS (SP)
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12 Petitioner, )
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13 v. ) MEMORANDUM AND ORDER
) DISMISSING PETITION
14 )
TOMLINSON, et al., )
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Respondents. )
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18 I.
19 INTRODUCTION
20 Petitioner Vincent Price McCowan is a California state prisoner proceeding
21 pro se. On March 17, 2020, petitioner initiated this action by filing what he
22 claimed was a motion for relief under 28 U.S.C. § 2255. Since petitioner is a state
23 prisoner challenging a state court conviction, the Court construes the motion as a
24 Petition for Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C.
25 § 2254 (the “Petition”).
26 Petitioner challenges his 1986 conviction for kidnapping to commit robbery
27 and resulting life sentence, as well as the California Board of Parole Hearing’s
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1 decision to deny him parole in February 2020. The Petition raises what appears to
2 be four grounds for relief: (1) petitioner is actually innocent of the offense on
3 which his 1986 conviction and life sentence is based as shown by newly
4 discovered evidence; (2) his guilty plea was the result of ineffective assistance of
5 counsel; (3) there may have been a violation of Brady v. Maryland, 373 U.S. 83, 83
6 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); and (4) his parole denial was based on an
7 unproven rape charge from 1984 and two false indecent exposure prison
8 disciplinary convictions from 2009 and 2012. Pet. at 1-4.
9 For the reasons discussed below, this Court lacks jurisdiction to entertain the
10 Petition. The Court alerted petitioner to the Petition’s jurisdictional defects in an
11 April 21, 2020 Order to Show Cause Why Petition Should Not Be Dismissed.
12 Petitioner did not respond to the Order to Show Cause. The Petition therefore will
13 be dismissed without prejudice.
14 II.
15 PRIOR PROCEEDINGS1
16 On April 4, 1986, petitioner pled guilty to kidnapping to commit robbery
17 (Cal. Penal Code § 209(b)) in Los Angeles County Superior Court, case number
18 A778141. See case no. CV 13-5943-CAS (OP), docket no. 33 at 2. On April 25,
19 1986, the trial court sentenced petitioner to 7 years to life in state prison. See case
20 no. CV 19-6792-CAS (SP), docket no. 8 at 2.
21 Petitioner has filed numerous § 2254 habeas petitions in this Court.
22 Although some of his prior petitions challenged his conditions of confinement
23 rather than a conviction, petitioner has filed five prior petitions in this Court
24 challenging his 1986 conviction for kidnapping to commit robbery and resulting
25 life sentence. The latter four of those petitions were dismissed, at least in part, as
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1 Petitioner provides limited information in the Petition about his prior
28 proceedings. Thus, the Court relies on its prior findings where necessary.
1 improperly successive under 28 U.S.C. § 2244(b).
2 On April 12, 1999, petitioner filed a petition under 28 U.S.C. § 2254 in this
3 Court in case number CV 99-3885-LEW (BQR), in which he challenged the same
4 1986 conviction he challenges in the current Petition. Petitioner raised two
5 grounds for relief: ineffective assistance of counsel because his trial counsel
6 instructed him to plead guilty, and involuntary and unknowing plea. On March 19,
7 2001, Judgment was entered dismissing the petition with prejudice as untimely.
8 See case no. CV 99-3885, docket no. 99; see also case no. CV 13-5943, docket no.
9 33 at 3.
10 On August 20, 1999, petitioner filed a second § 2254 petition in this Court in
11 case number CV 99-8510-LEW (BQR), in which he challenged the same 1986
12 conviction, claiming ineffective assistance of counsel. On June 28, 2001, an Order
13 was entered dismissing the petition as second or successive. See case no. CV 99-
14 8510, docket no. 5.
15 On August 12, 2013, petitioner filed a third § 2254 petition in this Court in
16 case number CV 13-5943-CAS (OP), in which he challenged the same 1986
17 conviction as in the instant Petition, claiming ineffective assistance of counsel. On
18 February 26, 2014, Judgment was entered dismissing the petition as successive.
19 See case no. CV 13-5943, docket nos. 33, 34.
20 On September 29, 2014, petitioner filed a fourth § 2254 petition in this
21 Court in case number CV 14-8112-CAS (RNB), challenging the same 1986
22 conviction he challenges in the instant Petition. In ground one of the petition,
23 petitioner claimed his guilty plea was the product of ineffective assistance of
24 counsel, because his counsel instructed him to plead guilty. On December 12,
25 2014, Judgment was entered dismissing ground one of the petition as successive.
26 See case no. CV 14-8112, docket nos. 9, 10, 11. Ground two, challenging the
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1 timing of petitioner’s parole hearing, was dismissed as precluded by a separate
2 pending class action. Id.
3 On August 5, 2019, petitioner filed a fifth § 2254 petition in this Court in
4 case number CV 19-6792-CAS (SP), challenging the same 1986 conviction he
5 challenges in the instant Petition, claiming ineffective assistance of counsel,
6 insufficient evidence, failure to disclose evidence, and possibly newly discovered
7 evidence. On October 30, 2019, Judgment was entered dismissing the petition as
8 successive. See case no. CV 19-6792, docket nos. 8, 9.
9 III.
10 DISCUSSION
11 A. The Court Lacks Jurisdiction Over This Successive Petition
12 In the Petition, petitioner is again attempting to challenge his 1986
13 conviction for kidnapping to commit robbery. The Antiterrorism and Effective
14 Death Penalty Act of 1996 (“AEDPA”) generally precludes second or successive
15 habeas petitions unless certain requirements are met, and unconditionally requires
16 dismissal of successive petitions presenting previously raised claims. Section
17 2244(b) provides, in relevant part,
18 (1) A claim presented in a second or successive habeas corpus
19 application under section 2254 that was presented in a prior
20 application shall be dismissed.
21 (2) A claim presented in a second or successive habeas corpus
22 application under section 2254 that was not presented in a prior
23 application shall be dismissed unless—
24 (A) the applicant shows that the claim relies on a new rule of
25 constitutional law, made retroactive to cases on collateral
26 review by the Supreme Court, that was previously unavailable;
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1 (B)(i) the factual predicate for the claim could not have been
2 discovered previously through the exercise of due diligence;
3 and
4 (ii) the facts underlying the claim, if proven and viewed in light
5 of the evidence as a whole, would be sufficient to establish by
6 clear and convincing evidence that, but for constitutional error,
7 no reasonable factfinder would have found the applicant guilty
8 of the underlying offense.
9 (3)(A) Before a second or successive application permitted by this
10 section is filed in the district court, the applicant shall move in the
11 appropriate court of appeals for an order authorizing the district court
12 to consider the application.
13 28 U.S.C. § 2244(b).
14 Because the instant Petition is directed to the same 1986 judgment of
15 conviction as petitioner’s § 2254 habeas petition in case number CV 99-3885,
16 which was dismissed as untimely, it constitutes a second or successive petition
17 within the meaning of 28 U.S.C. § 2244(b). See McNabb v.Yates, 576 F.3d 1028,
18 1030 (9th Cir. 2009) (holding that dismissal of a habeas petition as time barred
19 under 28 U.S.C. § 2244(d)(1) constitutes a disposition on the merits and renders a
20 subsequent petition second or successive for purposes of 28 U.S.C. § 2244(b)).
21 Petitioner’s claim in the instant Petition that his conviction was the result of
22 ineffective assistance of counsel because his attorney instructed him to plead guilty
23 must be dismissed under § 2244(b)(1) as identical to claims he alleged in his prior
24 federal habeas petitions. Tyler v. Cain, 533 U.S. 656, 661, 121 S. Ct. 2478, 150 L.
25 Ed. 2d 632 (2001) (citing 28 U.S.C. § 2244(b)(1)) (“If the prisoner asserts a claim
26 that he has already presented in a previous federal habeas petition, the claim must
27 be dismissed in all cases.”). Because petitioner seeks to again raise a claim already
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1 adjudicated by this Court, that aspect of the Petition will be dismissed under 28
2 U.S.C. § 2244(b)(1).
3 Moreover, to the extent petitioner is raising any new claims, the Petition also
4 will be dismissed under 28 U.S.C. § 2244(b)(3)(A) because petitioner has not
5 obtained permission from the Ninth Circuit to file a second or successive petition.
6 AEDPA requires that a prisoner who wishes to file a second or successive habeas
7 petition first “‘move in the appropriate court of appeals for an order authorizing the
8 district court to consider the application.’” Burton v. Stewart, 549 U.S. 147, 152-
9 53, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007) (quoting 28 U.S.C. § 2244(b)(3)(A));
10 see Gonzalez v. Crosby, 545 U.S. 524, 530, 125 S. Ct. 2641, 162 L. Ed. 2d 480
11 (2005) (“[B]efore the district court may accept a successive petition for filing, the
12 court of appeals must determine that it presents a claim not previously raised that is
13 sufficient to meet” section 2244(b)). A district court lacks jurisdiction to review
14 the second or successive petition in the absence of authorization from the
15 appropriate court of appeals. Cunningham v. Davis, 614 Fed. Appx. 922, 925 (9th
16 Cir. 2015); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001).
17 Here, there is no indication petitioner has sought or received such
18 permission. As such, and because the Petition is plainly second or successive, the
19 Court will “dismiss[] it in its entirety because [petitioner] failed to obtain the
20 requisite authorization from the Court of Appeals.” Magwood v. Patterson, 561
21 U.S. 320, 331, 130 S. Ct. 2788, 177 L. Ed. 2d 592 (2010).
22 B. Any Challenge to the Parole Denial Is Not Cognizable
23 In addition to challenging his 1986 conviction, petitioner also argues the
24 Board of Parole Hearings erred when it considered his 1984 rape charge and 2009
25 and 2012 indecent exposure disciplinary convictions in its decision to deny parole.
26 Pet. at 3-4. Petitioner cites to the Eighth Amendment’s prohibition against cruel
27 and unusual punishment but does not explain how the Board’s consideration of the
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1 rape charge or disciplinary convictions constitutes a constitutional violation. To
2 the extent petitioner might claim the Board’s denial deprived petitioner of a liberty
3 interest he had in parole without due process because there was not “some
4 evidence” that he was a danger to public safety, claims predicated on this legal
5 theory have been foreclosed by the United States Supreme Court. See Swarthout v.
6 Cooke, 562 U.S. 216, 131 S. Ct. 859, 178 L. Ed. 2d 732 (2011) (per curiam); Styre
7 v. Adams, 645 F.3d 1106 (9th Cir. 2011).
8 California’s statutory scheme requires that there be “some evidence” of
9 dangerousness to preclude an inmate’s grant of parole. Roberts v. Hartley, 640
10 F.3d 1042, 1044 (9th Cir. 2011) (citing In re Lawrence, 44 Cal. 4th 1181, 82 Cal.
11 Rptr. 3d 169, 190 P.3d 535 (2008)). Though California has created a liberty
12 interest in parole, this is a state liberty interest and it does not implicate a
13 substantive federal right. Roberts, 640 F.3d at 1045 (“Stated otherwise, there is no
14 substantive due process right created by California’s parole scheme.”). As such,
15 federal review of a state-created liberty interest in parole is only concerned with
16 whether the state procedure comports with the fairness requirements of the Due
17 Process Clause. Id. at 1045-46 (noting that courts should “look to federal law to
18 determine whether a state prisoner has been afforded the procedural protections
19 required by the Constitution.”).
20 The Supreme Court has held that, in the context of a parole hearing, “the
21 procedures required [to satisfy the Due Process Clause] are minimal” and “[d]ue
22 process is satisfied as long as the state provides an inmate seeking parole with ‘an
23 opportunity to be heard and . . . a statement of the reasons why parole was
24 denied.’” Id. at 1046 (9th Cir. 2011) (quoting Swarthout, 131 S. Ct. at 862).
25 Petitioner here gives no indication there was a procedural deficiency in his
26 parole hearing such that the Board failed to comply with the “minimal” procedures
27 to provide petitioner with due process under Swarthout. Accordingly, petitioner’s
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] || challenge to his denial of parole is not cognizable for purposes of federal habeas
2 || review.
3 IV.
4 CONCLUSION
5 IT IS THEREFORE ORDERED that Judgment be entered dismissing the
6 || Petition and this action without prejudice.
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8 || DATED: July 20, 2020 bes
HONORABLE CHRISTINA A. SNYDER
9 UNITED STATES DISTRICT JUDGE
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12 || Presented by:
— Pee
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15 Sheri Pym .
United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10038544. Public record. Not legal advice.