1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11

DOMINIQUE MERRIMAN, ) NO. CV 19-5757-AB (AGR)

) 12 Petitioner, ) ) OPINION AND ORDER ON 13 v. ) SECOND OR SUCCESSIVE ) PETITION 14 ) MICHAEL MARTEL, Warden, ) 15 ) Respondent.1 ) 16 ) ) 17 18 Because Petitioner previously challenged the same underlying state-court 19 judgment in a prior habeas action that the Court dismissed with prejudice, and 20 because Petitioner lacks Ninth Circuit authorization to file a second or successive 21 habeas petition, the Court lacks jurisdiction over the Petition for Writ of Habeas 22 Corpus. 23 24 25 1 Petitioner listed “State of California” as the Respondent. Petitioner is currently incarcerated at the California Health Care Facility (“CHCF”) in Stockton, 26 CA. According to the California Department of Corrections and Rehabilitation (“CDCR”)’s website, Michael Martel has been the Warden at CHCF since August 27 2016. Pursuant to Fed. R. Civ. P. 25(d), the Court substitutes Michael Martel as the proper Respondent. See Rumsfield v. Padilla, 542 U.S. 426, 435 (2004) 28 (proper Respondent is “person who has the immediate custody of the party detained”). 1 I. 2 PROCEDURAL HISTORY 3 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the records 4 in Petitioner’s prior federal habeas corpus action in the Central District of 5 California in Merriman v. Lizarraga, No. CV 17-8303-AB (AGR) (C.D. Cal. Oct. 6 16, 2018) (“Merriman I”). 7 On February 14, 2013, Petitioner pled no contest to one count of 8 kidnapping, one count of second degree robbery, admitted that he used a deadly 9 and dangerous weapon in the commission of the offenses, and had suffered a 10 prior serious or violent felony conviction. On December 19, 2013, the court 11 sentenced Petitioner to 24 years in state prison. People v. Merriman, No. 12 B254085, 2015 Cal. App. Unpub. LEXIS 83, at *2-5 (Cal. Ct. App. Jan. 6, 2015). 13 On January 6, 2015, the California Court of Appeal affirmed the judgment 14 in full. Id. at *1. Petitioner did not file a petition for review. (Merriman I, Dkt. No. 15 23 at 6.)2 16 A. State Habeas Petitions 17 On October 3, 2016, a Los Angeles County Superior Court denied a state 18 habeas petition. (Merriman I, Dkt. No. 13-4 at 2-3.) The Superior Court denied a 19 second state habeas petition on April 21, 2017. (Id., Dkt. No. 13-5 at 2.) On 20 June 9, 2017, the Superior Court denied a third state habeas petition. (Id., Dkt. 21 No. 13-7 at 2.) 22 On October 4, 2017, the California Court of Appeal summarily denied a 23 state habeas petition. (Id., Dkt. No. 13-9 at 2; Case number B285374.) On 24 February 14, 2018, the California Supreme Court summarily denied a state 25 26 2 Citations are to the page and document numbers generated by the Case 27 Management/Electronic Case Filing (“CM/ECF”) system in the header of the documents. 28 2 1 habeas petition. (Merriman I, Dkt. No. 13-11; Case number S245803.) 2 On September 5, 2018, the California Court of Appeal summarily denied a 3 state habeas petition. (Case number B292256.)3 On April 24, 2019, the California 4 Supreme Court summarily denied a state habeas petition. (Case number 5 S252733.)4 6 B. Merriman I: CV 17-8303 7 On November 6, 2017, Petitioner constructively filed a Petition for Writ of 8 Habeas Corpus by a Person in State Custody (“Petition”), pursuant to 28 U.S.C. § 9 2254, before this Court in Merriman I. (Dkt. No. 1 at 50 (proof of service).) On 10 August 21, 2018, the magistrate judge issued a Report and Recommendation 11 (“Report”) finding that the Petition was untimely and barred by the statute of 12 limitations and recommended that judgment be entered denying the petition and 13 dismissing the action with prejudice. (Merriman I, Dkt. No. 23 at 8-13.) 14 On October 16, 2018, the district court entered an order accepting the 15 Report, entered judgment denying the Petition and dismissing the action with 16 prejudice, and also denied a Certificate of Appealability. (Id., Dkt. Nos. 25-27.) 17 C. Merriman II: CV 19-5757 18 On June 19, 2019, Petitioner constructively filed the instant Petition before 19 this Court in Merriman v. Lizarraga, No. CV 19-5757 (C.D. Cal. 2019) (“Merriman 20 II”). (Dkt. No. 1 at 53.) Petitioner again challenges the same state court 21 conviction and sentence that he previously challenged in Merriman I. (Merriman 22 23 3 Docket information available on California Appellate Courts website at: 24 https://appellatecases.courtinfo.ca.gov/search/case/disposition.cfm?dist=2&doc_i d=2261201&doc_no=B292256&request_token=NiIwLSIkTkw4WyBRSCJdXE9IIE 25 w6USxTKiI%2BTz9SUCAgCg%3D%3D. 26 4 Docket information available on California Appellate Courts website at: https://appellatecases.courtinfo.ca.gov/search/case/disposition.cfm?dist=0&doc_i 27 d=2271426&doc_no=S252733&request_token=NiIwLSIkTkw4WyBRSCJdWE5IIF A0UDxTJiI%2BWzlTQCAgCg%3D%3D. 28 3 1 II, Dkt. No. 1 at 2, 5-6, 14-28.) 2 The Court takes judicial notice of the Ninth Circuit’s online public records 3 database indicating that Petitioner has not received authorization from the Ninth 4 Circuit to file a second or successive Petition. 5 II. 6 DISCUSSION 7 The Petition was filed after enactment of the Antiterrorism and Effective 8 Death Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA 9 in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997). 10 The AEDPA provides, in pertinent part: “Before a second or successive 11 application permitted by this section is filed in the district court, the applicant shall 12 move in the appropriate court of appeals for an order authorizing the district court 13 to consider the application.” 28 U.S.C. § 2244(b)(3)(A). A district court does not 14 have jurisdiction to consider a “second or successive” Petition absent 15 authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152 (2007). 16 The instant Petition is second or successive because Petitioner again 17 challenges the same state court conviction and sentence that he previously 18 challenged in Merriman I. In the Petition that he filed in Merriman I, Petitioner 19 raised the following three grounds for relief: (1) ineffective assistance of counsel 20 based on failure to accurately represent the evidence and failure to accurately 21 advise Petitioner before entering the no-contest plea; (2) the court failed to 22 conduct a hearing pursuant to People v. Marsden, 2 Cal. 3d 118 (1970) on 23 Petitioner’s ineffective assistance of counsel claim; and (3) the court abused its 24 discretion by not allowing Petitioner a reasonable time to prepare for the hearing 25 to withdraw the plea. (Merriman I, Dkt. No. 1 at 5-10, 20-27.) On October 16, 26 2018, the district court entered an order accepting the Report, entered judgment 27 denying the Petition and dismissing the action with prejudice, and also denied a 28 4 1 Certificate of Appealability. (Id., Dkt. Nos. 25-27.) 2 In Merriman II, Petitioner again challenges the same underlying conviction 3 and sentence. Petitioner raised the following grounds for relief: (1) the court 4 erroneously determined that Petitioner suffered a prior strike conviction for the 5 sentencing enhancement; (2-3) trial counsel’s ineffective assistance undermined 6 the voluntary and intelligent nature of the plea; and (4) ineffective assistance of 7 counsel on appeal. (Merriman II, Dkt. No. 1 at 5-6, 13-28.) 8 A Petition is second or successive “if the facts underlying the claim 9 occurred by the time of the initial petition” and “if the petition challenges the same 10 state court judgment as the initial petition.” Brown v. Muniz, 889 F.3d 661, 667 11 (9th Cir. 2018), cert. denied Brown v. Hatton, 139 S.Ct. 841 (2019) (citing Panetti 12 v. Quarterman, 551 U.S. 930, 945 (2007); Magwood v. Patterson, 561 U.S. 320, 13 332 (2010). Thus, the instant Petition is second or successive. 14 A review of the Ninth Circuit’s online database indicates that Petitioner has 15 not received authorization from the Ninth Circuit Court of Appeals to file a second 16 or successive Petition. See Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 17 2001) (“When the AEDPA is in play, the district court may not, in the absence of 18 proper authorization from the court of appeals, consider a second or successive 19 habeas application.”) (citation and quotation marks omitted). Rule 4 of the Rules 20 Governing Section 2254 Cases in the United States Courts provides that “[i]f it 21 plainly appears from the face of the petition and any attached exhibits that the 22 petitioner is not entitled to relief in the district court, the judge must dismiss the 23 petition and direct the clerk to notify the petitioner.” The Court therefore 24 dismisses the Petition as a second or successive Petition for which it lacks 25 jurisdiction. The Clerk is directed to send Petitioner a copy of Ninth Circuit Form 26 12 so that he can provide the necessary information to the Ninth Circuit for such 27 an application. 28 5 1 lll. 2 ORDER 3 IT IS THEREFORE ORDERED that Judgment be entered summarily 4 dismissing the Petition and action for lack of subject matter jurisdiction. : (nde 7 DATED: August 13, 2019 site lig 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28