The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 RUDY VASQUEZ, ) Case No. CV 20-8449-JLS (JPR)
12 Petitioner, )
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ORDER DISMISSING PETITION FOR
13 v. ) WRIT OF HABEAS CORPUS FOR LACK
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KATHLEEN ALLISON, CDCR
) ) OF SUBJECT-MATTER JURISDICTION
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Secretary,1 ) )
Respondent. )
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17 On September 14, 2020, Petitioner, proceeding pro se, filed a
18 Petition for Writ of Habeas Corpus by a Person in State Custody,
19 challenging his 1994 convictions for murder and attempted murder.
20 This is his second federal habeas petition challenging that state-
21 court judgment. He first filed one on August 23, 2016; the Court
22 denied it on the merits and dismissed it with prejudice on
23 September 10, 2017. See Vasquez v. Spearman, No. CV 16-6333-JLS
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25 1 The Petition names Ralph Diaz, the former CDCR Secretary, as
Respondent. (See Pet. at 1.) Kathleen Allison is the current CDCR
26 Secretary; she is therefore substituted in as the proper
Respondent. See Fed. R. Civ. P. 25(d); R. 2(a), Rs. Governing §
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2254 Cases in U.S. Dist. Cts.
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1 (JPR), 2017 WL 4011054 (C.D. Cal. June 26, 2017), accepted by 2017
2 WL 3995501 (C.D. Cal. Sept. 10, 2017).
3 On December 17, 2020, Respondent moved to dismiss the Petition
4 as second or successive as well as premature under Younger v.
5 Harris, 401 U.S. 37, 45-46 (1971). Despite a sua sponte extension
6 of his time to file opposition, Petitioner never opposed the motion
7 or requested another extension of time to do so. For the reasons
8 discussed below, Respondent’s motion to dismiss is granted and the
9 Petition is dismissed without prejudice.
10 PETITIONER’S CLAIMS
11 I. The trial court unconstitutionally imposed restitution
12 without jury findings proven beyond a reasonable doubt. (Pet. at
13 5, 9, 15-16.)
14 II. The trial court unconstitutionally imposed restitution
15 without a hearing on Petitioner’s ability to pay. (Id. at 5, 17-
16 19.)
17 III. Under Johnson v. United States, 576 U.S. 591, 606 (2015),
18 Petitioner was convicted under an unconstitutionally vague law.
19 (Pet. at 6, 20-22.)
20 BACKGROUND
21 On February 18, 1994, a Los Angeles County Superior Court jury
22 convicted Petitioner of second-degree murder and attempted first-
23 degree murder. (See Lodged Doc. 1 at 2-3.) The court sentenced
24 him to two consecutive life terms and ordered a restitution fine in
25 the amount of $10,000. (Id. at 3.) On November 22, 1995, the
26 state court of appeal affirmed the judgment. (See id. at 1, 5.)
27 Petitioner doesn’t appear to have filed a petition for review in
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1 the state supreme court. See Cal. App. Cts. Case Info.,
2 https://appellatecases.courtinfo.ca.gov/search/
3 searchResults.cfm?dist=0&search=party (search for “Rudy” with
4 “Vasquez” in Sup. Ct.) (last visited Mar. 11, 2021).
5 On August 23, 2016, Petitioner filed a federal habeas
6 petition, claiming that under Johnson, 576 U.S. at 591, his
7 sentence was unconstitutional. See Pet., Vasquez, 16-cv-6333-JLS
8 (JPR), ECF No. 1. On September 10, 2017, the Court denied the
9 petition on the merits and dismissed it with prejudice. See Order
10 Accepting R. & R., id., ECF No. 28.
11 On May 17, 2019, Petitioner filed a habeas petition in the
12 superior court, challenging the constitutionality of the
13 restitution component of his sentence. (See Lodged Doc. 2.) On
14 July 26, 2019, the superior court denied the petition. (See Lodged
15 Doc. 3.) On August 30, 2019, he filed a habeas petition in the
16 state court of appeal, raising the same claims as in the Petition.
17 (See Lodged Doc. 5.) On January 20, 2020, the court of appeal
18 denied the petition. (See Lodged Doc. 6.) On January 29, 2020, he
19 filed a habeas petition in the state supreme court, again raising
20 the Petition’s claims (see Lodged Doc. 8); the supreme court
21 summarily denied the petition on May 27 (see Lodged Doc. 9).
22 Meanwhile, on August 30, 2019, Petitioner filed in the
23 superior court a petition for resentencing under Penal Code section
24 1170.95.2 (See Lodged Doc. 4.) On October 1, 2020, the superior
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2 Error! Main Document Only.Senate Bill 1437, which went into
26 effect in 2019, “was enacted to ‘amend the felony murder rule and
the natural and probable consequences doctrine, as it relates to
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murder, to ensure that murder liability is not imposed on a person
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1 court denied the petition. (See Lodged Doc. 10.) That same day,
2 he filed a notice of appeal. (Lodged Doc. 11.) That appeal
3 remains pending. See Cal. App. Courts Case Info., https://
4 appellatecases.courtinfo.ca.gov/search.cfm?dist=2 (search for
5 “Rudy” with “Vasquez” in 2d App. Dist.) (last visited Mar. 18,
6 2021).
7 PETITIONER’S CLAIMS ARE SUCCESSIVE
8 The Antiterrorism and Effective Death Penalty Act of 1996
9 provides, in 28 U.S.C. § 2244(b), as follows:
10 (1) A claim presented in a second or successive habeas
11 corpus application under section 2254 that was presented
12 in a prior application shall be dismissed.
13 (2) A claim presented in a second or successive habeas
14 corpus application under section 2254 that was not
15 presented in a prior application shall be dismissed unless—
16 (A) the applicant shows that the claim relies on
17 a new rule of constitutional law, made retroactive to
18 cases on collateral review by the Supreme Court, that
19 was previously unavailable; or
20 (B)(i) the factual predicate for the claim could
21 not have been discovered previously through the
22 exercise of due diligence; and
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who is not the actual killer, did not act with the intent to kill,
24 or was not a major participant in the underlying felony who acted
with reckless indifference to human life.’” People v. Martinez, 31
25 Cal. App. 5th 719, 723 (2019) (citation omitted). The bill enacted
section 1170.95(a) to allow those so convicted to “file a petition
26 with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced on any
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remaining counts.” Id. (citation omitted).
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1 (ii) the facts underlying the claim, if proven
2 and viewed in light of the evidence as a whole, would
3 be sufficient to establish by clear and convincing
4 evidence that, but for constitutional error, no
5 reasonable factfinder would have found the applicant
6 guilty of the underlying offense.
7 (3)(A) Before a second or successive application
8 permitted by this section is filed in the district court,
9 the applicant shall move in the appropriate court of
10 appeals for an order authorizing the district court to
11 consider the application.
12 Not all “[h]abeas petitions that are filed second-in-time are
13 . . . second or successive.” Clayton v. Biter, 868 F.3d 840, 843
14 (9th Cir. 2017). For instance, a petition is not successive “if
15 the factual predicate for the claim accrued only after the time of
16 the initial petition.” Brown v. Muniz, 889 F.3d 661, 667 (9th Cir.
17 2018) (citation omitted). Nor is a petition successive “if it is
18 based on an intervening state court judgment . . . notwithstanding
19 that the same claim . . . could have been brought in the first
20 petition.” Id. (emphasis omitted) (citing Magwood v. Patterson,
21 561 U.S. 320, 331-36 (2010)). A state-court judgment may be
22 “intervening” even if it leaves “in place an earlier challenged
23 conviction and sentence.” Clayton, 868 F.3d at 843-44 (citation
24 omitted). Thus, in Clayton, in which the petitioner challenged the
25 denial of a resentencing petition filed under a different state-law
26 provision than the one at issue here, the Ninth Circuit held that
27 the resentencing petition’s denial “result[ed] in the entry of a
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1 new appealable order or judgment,” and therefore his claim
2 challenging that denial wasn’t successive. 868 F.3d at 844; see
3 Young v. Cueva, No. CV 20-8304-CJC(E), 2020 WL 8455474, at *2 (C.D.
4 Cal. Oct. 27, 2020) (finding that “denial of a petition for
5 resentencing under . . . section 1170.95” constituted “new
6 judgment” and that petitioner’s challenge of denial was not
7 successive).
8 Accordingly, if the Petition challenged the superior court’s
9 denial of Petitioner’s section 1170.95 resentencing petition, it
10 likely wouldn’t be successive. See Young, 2020 WL 8455474, at *2.
11 But the Petition doesn’t address that denial;3 instead, it
12 challenges the same 1994 judgment as in his 2016 petition in this
13 Court. Indeed, the current Petition’s third ground is virtually
14 identical to the claim he raised in that petition, compare Pet.,
15 Vasquez, 16-cv-6333-JLS (JPR), ECF No. 1, with Pet. at 6, 20-22,
16 which the Court denied on the merits, see Order Accepting R. & R.,
17 id., ECF No. 28.
18 Thus, Petitioner’s claims, which for the reasons Respondent
19 notes aren’t based on a factual predicate that accrued after his
20 initial petition was decided or on an intervening state-court
21 judgment (see Mot. Dismiss, Mem. P. & A. at 5-8), are impermissibly
22 successive. See Davis v. Sullivan, No. 17-73465, 2018 U.S. App.
23 LEXIS 19388, *1 (9th Cir. July 13, 2018) (distinguishing Clayton
24 because petition did not challenge denial of resentencing but
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26 3 For the reasons Respondent points out (see Mot. Dismiss,
Mem. P. & A. at 8-12), even if it did, the Court would need to
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abstain under Younger, 401 U.S. at 45-46.
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1 ||rather original judgment of conviction); Cole v. Sullivan, 480 F.
2 ||Supp. 3d 1089, 1097 (C.D. Cal. Aug. 19, 2020) (holding that “denial
3 Jlof [section 1170.95] resentencing relief” does not “open the door
4 ||for a petitioner to bring a new challenge to an old conviction that
5 |}already has been challenged, versus a challenge to the resentencing
6 ||decision, absent authorization to file a second or successive
7 |lpetition”); Kirkpatrick v. Foss, No. CV 17-08917-CAS (AGR), 2019 WL
8 114859062, at *1 (C.D. Cal. Oct. 2, 2019) (same), appeal filed, No.
91119-56438 (9th Cir. Dec. 11, 2019).
10 Because the Petition is successive within the meaning of
11 2244(b), Petitioner was required to secure an order from the
12 ||Ninth Circuit authorizing its filing. See Cooper v. Calderon, 274
13 1270, 1274 (9th Cir. 2001) (per curiam). A review of the
14 ||Ninth Circuit’s docket indicates that he has not obtained any such
15 j}Jorder; indeed, he apparently has never even requested one.
16 |/Accordingly, the Petition must be dismissed.
17 ORDER
18 For the foregoing reasons, IT IS ORDERED that Respondent’s
19 ||motion to dismiss is granted and the Petition is dismissed without
29 |}Pprejudice.
21 LET JUDGMENT BE ENTERED ACCORDINGLY. ae aa
29 || DATED: March 24, 2021 aul
JOSEPHINE L. STATON
23 U.S. DISTRICT JUDGE
Presented by:
24 Yatt.
25 |lSean Rosenbluth SOS
26 Magistrate Judge
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