Jovanny Hernandez v. Christian Pfeiffer

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:25-cv-02073-DSF-AJR Date: April 14, 2025

Page 1 of 5

Title: Jovanny Hernandez v. Christian Pfeiffer

DOCKET ENTRY: ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD

NOT BE DISMISSED AS SUCCESSIVE

PRESENT:

HONORABLE A. JOEL RICHLIN, UNITED STATES MAGISTRATE JUDGE

_ Claudia Garcia-Marquez_ _______None_______ __None__

Deputy Clerk Court Reporter/Recorder Tape No.

ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANTS:

None Present None Present

PROCEEDINGS: (IN CHAMBERS)

On March 1, 2025, 1 Petitioner Jovanny Hernandez (“Petitioner”), a California state

prisoner proceeding pro se, constructively filed a Petition for Writ of Habeas Corpus by a

Person in State Custody, pursuant to 28 U.S.C. § 2254 (the “Petition”), challenging his

2008 conviction. (Dkt. 1 at 1.)2 However, Petitioner previously filed a federal habeas

1 “In determining when a pro se state or federal petition is filed, the ‘mailbox’ rule

applies. A petition is considered to be filed on the date a prisoner hands the petition to

prison officials for mailing.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010); see

also Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014). Accordingly, the Court has

assumed a constructive filing date of March 1, 2025, which is the date Petitioner signed

the petition. (Dkt. 1 at 22, 93).

2 The Court cites to the CM/ECF pagination on the top of each page.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:25-cv-02073-DSF-AJR Date: April 14, 2025

Page 2 of 5

Title: Jovanny Hernandez v. Christian Pfeiffer

petition on March 16, 2012, case number 2:12-cv-02238-DSF-FFM (“Prior Petition”),

which challenged the same 2008 conviction.

Under Rule 4 of the Rules Governing Section 2254 Cases, this Court has an

affirmative obligation to screen habeas petitions to determine “[i]f it plainly appears from

the petition and any attached exhibits that the petitioner is not entitled to relief in the

district court.” Here, the Court has reviewed the Petition and attached exhibits, and

believes that the Petition may be successive, as explained below.

I. PROHIBITION ON SUCCESSIVE PETITIONS.

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to the

instant Petition because Petitioner filed it after the AEDPA’s effective date of April 24,

1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Brown v. Atchley, 76 F.4th

862, 865 (9th Cir. 2023). AEDPA prohibits a second or successive petition absent

permission by the appropriate court of appeals. 28 U.S.C. § 2244(b)(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.”); see also Burton v. Stewart, 549 U.S. 147, 152

(2007) (per curiam) (AEDPA states that “before filing [a second or successive habeas]

application in the district court, a prisoner ‘shall move in the appropriate court of appeals

for an order authorizing the district court to consider the application’”) (quoting 28 U.S.C.

§ 2244(b)(3)(A)); Tyler v. Cain, 533 U.S. 656, 661 (2001) (“AEDPA greatly restricts the

power of federal courts to award relief to state prisoners who file second or successive

habeas corpus applications.”). Thus, “[i]f [a] prisoner asserts a claim that he has already

presented in a previous federal habeas petition, the claim must be dismissed in all cases.

And if the prisoner asserts a claim that was not presented in a previous petition, the claim

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:25-cv-02073-DSF-AJR Date: April 14, 2025

Page 3 of 5

Title: Jovanny Hernandez v. Christian Pfeiffer

must be dismissed unless it falls within one of two narrow exceptions.” Tyler, 533 U.S. at

661 (emphasis in original, internal citations omitted).3

The instant Petition challenges the same 2008 conviction that Petitioner previously

challenged in his Prior Petition, which was dismissed with prejudice on April 8, 2013. See

Jovanny Hernandez v. Greg Lewis, Warden, 2:12-cv-02238-DSF-FFM (C.D. Cal.) (Dkt.

18 (Report and Recommendation), Dkt. 23 (Order Accepting Report and

Recommendation), Dkt. 24 (Judgment dismissing Prior Petition with prejudice). The

Petition contends that Petitioner is entitled to habeas relief from his 2008 conviction based

on the following grounds for relief: (1) ineffective assistance of trial counsel for failing to

research and argue defenses of law; and (2) ineffective assistance of appellate counsel for

failing to raise trial counsel’s error. (Dkt. 1 at 4-8.)

Petitioner acknowledges that his Petition is successive. (Id. at 3.) However, he

argues that the Petition is not barred as successive because his sentence was recently

recalled under People v. Heard, 83 Cal. App. 5th 608 (Cal. Ct. App. 2022). (Id.)

Petitioner argues that a petition filed after a resentencing is not considered second or

successive, even if it challenges undisturbed convictions, citing King v. Morgan, 807 F.3d

154 (6th Cir. 2015). (Id.) Based on this reasoning, Petitioner asserts that his Petition is

not second or successive. (Id.) Petitioner is mistaken.

Neither Heard nor King supports Petitioner’s claim that his Petition is not second or

successive for two reasons. First, a state court’s recall of a sentence does not necessarily

issue a new judgment under federal habeas law, and absent such a new judgment,

Petitioner’s Petition remains successive under 28 U.S.C. § 2244(b). Second, although it is

true that the Sixth Circuit in King held that a habeas petition filed after a full resentencing

resulting in a new judgment is not second or successive, even if it challenges the original

3 “One of these exceptions is for claims predicated on newly discovered facts that call

into question the accuracy of a guilty verdict. The other is for certain claims relying on

new rules of constitutional law.” Tyler, 533 U.S. at 661–62 (internal citations omitted).

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:25-cv-02073-DSF-AJR Date: April 14, 2025

Page 4 of 5

Title: Jovanny Hernandez v. Christian Pfeiffer

conviction, that decision is not binding on this Court but merely persuasive authority.

Further, Magwood v. Patterson, 561 U.S. 320 (2010), which is binding on this Court,

makes clear that this principle applies only when the resentencing constitutes a genuinely

new judgment. See King, 807 F.3d at 156. Specifically, in Magwood, the Supreme Court

explained that second and successive limitations imposed by § 2244(b) applied only to

habeas petitions that relate to a specific “judgment of a State court” under § 2254(b)(1).

Magwood, 561 U.S. at 332 (emphasis in original). A petitioner’s new sentence, imposed

after a resentencing proceeding, qualifies as a new judgment so that the “first application

challenging that new judgment [is not] second or successive.” Id. at 331 (internal

quotation marks omitted). Here, the Petition, as alleged, is unclear. However, if

Petitioner’s sentence was merely modified or recalled without the issuance of a full new

judgment, Magwood does not apply, and his Petition remains subject to the “second or

successive” restrictions of § 2244(b).

Moreover, even if Petitioner qualifies for an exception to AEDPA’s successive bar,

Tyler, 533 U.S. at 661, he must still obtain permission from the Ninth Circuit before this

Court can adjudicate his challenge to his 2008 conviction. See Woods v. Carey, 525 F.3d

886, 888 (9th Cir. 2008) (“Even if a petitioner can demonstrate that he qualifies for one of

these exceptions, he must seek authorization from the court of appeals before filing his

new petition with the district court.”). Based on the Court’s review of the docket,

Petitioner has not requested or received permission from the Ninth Circuit to file the

instant Petition. Therefore, the Court lacks jurisdiction to adjudicate Petitioner’s habeas

challenge to his 2008 conviction. See Burton, 549 U.S. at 157 (because “Burton neither

sought nor received authorization from the Court of Appeals before filing his [successive]

petition, . . . the District Court was without jurisdiction to entertain it”).

II. CONCLUSION

Based upon the Petition as currently submitted, 28 U.S.C. § 2244(b)(3)(A) appears

to bar Petitioner’s challenge to his 2008 conviction as successive. Petitioner therefore is

ORDERED TO SHOW CAUSE, no later than May 5, 2025, why this Court should not

recommend that the Petition be dismissed without prejudice as successive.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:25-cv-02073-DSF-AJR Date: April 14, 2025

Page 5 of 5

Title: Jovanny Hernandez v. Christian Pfeiffer

Petitioner is advised that if he no longer wishes to pursue this action, he may

voluntarily dismiss the action by filing a Notice of Dismissal in accordance with Federal

Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Petitioner’s

convenience. However, Petitioner should be aware that any dismissed claims may be

later subject to the statute of limitations under 28 U.S.C. § 2244(d)(1), as amended by

the AEDPA, which provides 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.”

Petitioner is further advised that if he fails to timely respond to this Order to

Show Cause, or fails to show why this action is not successive, the Court will

recommend that this action be dismissed with prejudice for his failure to comply

with Court orders and failure to prosecute. See Fed. R. Civ. P. 41(b).

IT IS SO ORDERED.

Attachments:

CV-09, Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c).