expressly declining to address the timeliness of a petition upon affirming that the petition was successive
How later courts described this case
- expressly declining to address the timeliness of a petition upon affirming that the petition was successive
- “We assume that [petitioner] turned his petition over to prison authorities on the same day he signed it and apply the mailbox rule.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. CV 19-7151 DSF (SS) Date: August 22, 2019
Page 1 of 6
Title: Curtis Hernandez v. N. McDowell, Warden
DOCKET ENTRY: ORDER TO SHOW CAUSE WHY THE MAGISTRATE
JUDGE SHOULD NOT RECOMMEND THAT THIS
ACTION BE DISMISSED AS SUCCESSIVE
PRESENT:
HONORABLE SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE
_Marlene Ramirez_ _______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 August 9, 2019,1 Curtis Hernandez, a California state prisoner proceeding pro se,
constructively filed a habeas petition pursuant to 28 U.S.C. § 2254 (the “Petition”).
Petitioner is challenging his May 5, 2008 conviction and sentence, following a bench trial,
on one count of robbery in violation of California Penal Code § 211, for which he is serving
1 Under the “mailbox rule,” a pleading filed by a pro se prisoner is deemed filed as of the
date the prisoner delivered it to prison authorities for mailing, not the date on which the
pleading may have been received by the court. See Houston v. Lack, 487 U.S. 266, 270
(1988); Anthony v. Cambra, 236 F.3d 568, 574-75 (9th Cir. 2000). Petitioner appears to
have signed the Petition on August 9, 2019. (Petition at 6). Therefore, the Court will deem
the Petition filed on that date. See Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014)
(“We assume that [petitioner] turned his petition over to prison authorities on the same day
he signed it and apply the mailbox rule.”).
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. CV 19-7151 DSF (SS) Date: August 22, 2019
Page 2 of 6
Title: Curtis Hernandez v. N. McDowell, Warden
________________________________________________________________________
a twenty-year term in state prison due to an enhancement for a prior conviction. (Id. at 2).
The Petition appears to be successive.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to the instant
Petition because Petitioner filed it after AEDPA’s effective date of April 24, 1996. Lindh
v. Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, a petition is considered “successive”
if it challenges “the same custody imposed by the same judgment of a state court” as a prior
petition. Burton v. Stewart, 549 U.S. 147, 153 (2007) (per curiam). AEDPA prohibits the
filing of a second or successive petition in district courts unless the petitioner first obtains
permission from the appropriate court of appeals. See 28 U.S.C. § 2244(a)(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, 549 U.S. at 152-53 (quoting 28 U.S.C.
§ 2244(b)(3)(A)).
“If [a] prisoner asserts a claim [in a successive petition] 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 must be
dismissed unless it falls within one of two narrow exceptions.”2 Tyler v. Cain, 533 U.S.
656, 661 (2001). However, “[e]ven if a petitioner can demonstrate that he qualifies for one
of these exceptions, he must [still] seek authorization from the court of appeals before filing
his new petition with the district court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008).
The instant Petition appears to challenge the same 2008 conviction and sentence that
Petitioner has previously challenged in this Court in at least three other habeas petitions.3
2 “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 (citations omitted). Neither of these
exceptions appears to apply here.
3 Petitioner has also filed a civil rights complaint under 42 U.S.C. § 1983 that, apart from
its caption, appears nearly indistinguishable from his three habeas petitions, including the
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. CV 19-7151 DSF (SS) Date: August 22, 2019
Page 3 of 6
Title: Curtis Hernandez v. N. McDowell, Warden
________________________________________________________________________
Petitioner filed the first prior petition on January 4, 2010. (See Curtis James Hernandez v.
Warden, C.D. Cal. Case No. CV 10-0031 JHN (SS)). The Court dismissed the 2010 petition
with leave to amend on February 10, 2010 due to multiple pleading deficiencies, including
Petitioner’s failure to clearly articulate his claims and to name a respondent. (Id., Dkt. No.
3 at 2-4). Because Petitioner failed to file a first amended petition by the Court’s deadline,
the Magistrate Judge issued a Report and Recommendation recommending that the petition
be denied with prejudice for failure to prosecute and obey court orders. (Id., Dkt. No. 5).
The District Judge accepted the Report and Recommendation on July 29, 2010 and entered
judgment dismissing the petition with prejudice that same day. (Dkt. Nos. 12-13).
Petitioner filed the second prior petition on February 14, 2017. (See Curtis
Hernandez v. Paul Sudwal, C.D. Cal. Case No. CV 17-1172 DSJ (SS)). The Court
dismissed it with leave to amend on February 23, 2017, again due to pleading deficiencies.
(Dkt. No. 4). Because Petitioner failed to file a first amended petition by the Court’s
deadline, the Magistrate Judge issued a Report and Recommendation recommending that
the petition be denied with prejudice for failure to prosecute and obey court orders. (Id.,
Dkt. No. 6). The District Judge accepted the Report and Recommendation on July 7, 2017
and entered judgment dismissing the petition with prejudice that same day. (Dkt. Nos. 7-
8).
A third petition challenging the same 2008 conviction followed on December 6,
2018. (See Curtis Hernandez v. R. Madden, C.D. Cal. Case No. CV 18-10457 DSF (SS)).
On January 10, 2019, the Court issued an Order to Show Cause as to why the Court should
not recommend dismissal for successiveness. (Id., Dkt. No. 3). When Petitioner failed to
incomprehensibility of the claims and the attachment of approximately 140 pages of
seemingly random exhibits. (See Hernandez v. Sudwal, C.D. Cal. Case No. CV 16-6351
DSJ (SS), Dkt. No. 1). The District Judge denied Petitioner’s IFP application in that case
on the grounds that the Court lacked jurisdiction and the complaint was “[f]rivolous,
malicious, or fail[ed] to state a claim upon which relief may be granted.” (Id., Dkt. No. 4).
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. CV 19-7151 DSF (SS) Date: August 22, 2019
Page 4 of 6
Title: Curtis Hernandez v. N. McDowell, Warden
________________________________________________________________________
respond by demonstrating why dismissal was unwarranted, the Magistrate Judge issued a
Report and Recommendation recommending that the petition be denied without prejudice
as successive. (Id., Dkt. No. 6). The District Judge accepted the Report and
Recommendation on February 28, 2019 and entered judgment dismissing the petition
without prejudice that same day. (Dkt. Nos. 7-8). The Court additionally issued an Order
declining to issue a certificate of appealability. (Dkt. No. 9).
Because this is at least the fourth habeas petition that Petitioner has filed in this Court
challenging the same 2008 conviction and sentence, and at least two of the prior petitions
were dismissed with prejudice, the instant Petition appears successive. Petitioner purports
to address the successiveness issue in several handwritten pages attached to the Petition.
(Petition at 9-18).4 He asserts, for example, that he has “conducted extensive discovery into
rights privilege to re-file writ of habeas [sic].” (Id. at 9). However, rather than demonstrate
why his Petition is not barred as successive, he argues the substantive merits of his habeas
claims, and disputes the Court’s denial of a certificate of appealability in his previous habeas
action on February 28, 2019. (Id. at 9-18; see C.D. Cal. Case No. CV 18-10457 DSF (SS),
Dkt. No. 9).
These contentions are irrelevant, however. Unless Petitioner can establish that his
Petition is not in fact successive, his only recourse for seeking federal habeas relief is to first
request and obtain permission from the Ninth Circuit to file a successive habeas petition
challenging his 2008 conviction and sentence. 28 U.S.C. § 2244(b)(3)(A). Based on the
Court’s review of the docket, Petitioner has neither requested nor received permission from
the Ninth Circuit to file the Petition. Accordingly, the Court appears to lack jurisdiction to
adjudicate the instant Petition.5 See Burton, 549 U.S. at 157.
4 Citations to the Petition refer to the page numbers assigned by Court’s electronic case
filing system.
5 The Petition also appears likely to be untimely, as Petitioner was convicted over eleven
years ago and filed his first federal habeas petition challenging that conviction nine years
ago. However, because the bar on successive petitions is dispositive and would deprive
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. CV 19-7151 DSF (SS) Date: August 22, 2019
Page 5 of 6
Title: Curtis Hernandez v. N. McDowell, Warden
________________________________________________________________________
Petitioner therefore is ORDERED TO SHOW CAUSE, within fourteen (14) days
of the date of this Order, why this Court should not recommend that the Petition be
dismissed without prejudice as successive. Petitioner may satisfy this Order to Show Cause
by filing a response and/or declaration setting forth any reason why the instant Petition is
not barred as successive. After the Court receives a response to the Order to Show Cause,
it may prepare a Report and Recommendation for submission to the District Judge. This
Order is not dispositive of any of Petitioner’s claims.
Instead of filing a response to this Order to Show Cause, Petitioner may request
a voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a).
A Notice of Dismissal form is attached for Petitioner’s convenience. Petitioner,
however, is advised 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.”
this Court of jurisdiction, the Court will not address the apparent untimeliness of
Petitioner’s current claims. See Cooper v. Calderon, 274 F.3d 1270, 1275 n.3 (9th Cir.
2001) (expressly declining to address the timeliness of a petition upon affirming that the
petition was successive); see also Fisher v. Clark, 2014 WL 1457816, at *2 (C.D. Cal. Apr.
14, 2014) (“[T]he Court need not resolve the timeliness issue because the petition is subject
to dismissal without prejudice for lack of subject-matter jurisdiction[.]”); Adams v. Fox,
2016 WL 7742175, at *2 (D. Mont. Nov. 21, 2016), report and recommendation adopted,
2017 WL 123732 (D. Mont. Jan. 12, 2017), certificate of appealability denied, 2017 WL
3202589 (9th Cir. May 4, 2017) (“If the 2013 petition was deemed to be untimely, certainly
the claims he raises now are even more untimely. And while timeliness could serve as a
potential bar to this Court hearing the merits of [petitioner’s] present claims, it is the
successive nature of the petition which deprives this Court of jurisdiction.”).
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. CV 19-7151 DSF (SS) Date: August 22, 2019
Page 6 of 6
Title: Curtis Hernandez v. N. McDowell, Warden
________________________________________________________________________
Petitioner is expressly warned that failure to timely file a response to this Order
to Show Cause may result in a recommendation that this action be dismissed with
prejudice for failure to prosecute and obey Court orders. See Fed. R. Civ. P. 41(b).
The Clerk of Court is directed to serve a copy of this Order to Show Cause on
Petitioner at his current address of record.
IT IS SO ORDERED.
MINUTES FORM 00:00
CIVIL-GEN Initials of Deputy Clerk mr