Case 2:22-cv-04455-RGK-PD Document 12 Filed 08/30/22 Page 1 of 5 Page ID #:65

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 HALL L. JOHNSON, III, Case No. 2:22-CV-04455-RGK-PD

12 Petitioner, ORDER TO SHOW CAUSE RE:

DISMISSAL OF HABEAS

13 v.

PETITION

14 B. CATES, 15 Respondent.

16 On June 29, 2022, Petitioner Hall L. Johnson, III, filed a Petition under 17 28 U.S.C. § 2254 challenging his 2017 state convictions for multiple sex 18 crimes against a minor. The Court issues this Order to Show Cause directed 19 to Petitioner because the face of the Petition suggests that it is an 20 unauthorized second or successive petition. 21

I. Procedural History

22 A Los Angeles County Superior Court jury convicted Petitioner of one 23 count of human trafficking of a minor for a commercial sex act, two counts of 24 committing a lewd act upon a child, one count of kidnapping for child 25 molestation, and two counts of forcible rape, in violation of California Penal 26 Code sections 236.1(c)(l), 288(a), 207(b), and 261(a)(2). He was sentenced to 27 28 Case 2:22-cv-04455-RGK-PD Document 12 Filed 08/30/22 Page 2 of 5 Page ID #:66

1 31 years and four months to life in state prison. [See Pet. at 2]; 1 Johnson v. 2 Sullivan, No. CV 20-1198-RGK (PD) (filed Feb. 6, 2020) (“Johnson II”), Dkt. 3 No. 15-1 at 10-14. He appealed, and the California Court of Appeal vacated 4 the sentence and remanded to the trial court for resentencing but otherwise 5 affirmed the judgment. 6 On remand, Petitioner was resentenced to 40 years and eight months in 7 state prison. He again appealed, the California Court of Appeal affirmed, and 8 the California Supreme Court denied review. See Johnson II, Dkt. Nos. 15-2, 9 15-5 through 15-7. 10 After the court of appeal vacated his initial sentence, Petitioner filed an 11 unsuccessful state habeas petition in the California Court of Appeal and a 12 premature federal habeas petition in this Court. See Johnson II, Dkt. Nos. 13 15-3, 15-4; see also Johson v. Sullivan, No. CV 19-232-RGK (JDE) (filed Jan. 14 10, 2019) (“Johnson I”). He then filed a habeas petition in the California Supreme Court, which denied it on January 22, 2020. See Cal. App. Cts. Case 15 Info., http://appellatecases.courtinfo.ca.gov/ (search for “Hall” with “Johnson” 16 in supreme court) (last visited Aug. 29, 2022). 17 On February 6, 2020, Petitioner filed a second habeas petition in this 18 Court, asserting three claims challenging his 2017 convictions. On June 15, 19 2021, the District Judge dismissed the petition on its merits with prejudice. 20 See Johnson II, Dkt. Nos. 1, 49, 54, 55. Petitioner then requested a certificate 21 of appealability in the Ninth Circuit Court of Appeals, which denied it on 22 March 30, 2022. He moved for reconsideration, and the Ninth Circuit denied 23 the motion on April 28, 2022. See id., Dkt Nos. 64, 65. 24 Meanwhile, on October 18, 2021, Petitioner filed a habeas petition in 25 the California Court of Appeal, which denied it on January 20, 2022. [See Pet. 26 27 1 The Court uses the page numbers inserted on the pleadings by the electronic 28 docketing system.

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1 at 3-4]; Cal. App. Cts. Case Info., http://appellatecases.courtinfo.ca.gov/ 2 (search for “Hall” with “Johnson” in court of appeal, 2d dist.) (last visited Aug. 3 29, 2022). He then filed a habeas petition in the California Supreme Court, 4 which denied it on June 15, 2022. [See Pet. at 4]; Cal. App. Cts. Case Info., 5 http://appellatecases.courtinfo.ca.gov/ (search for “Hall” with “Johnson” in 6 supreme court) (last visited Aug. 29, 2022). 7 On June 29, 2022, he filed the instant Petition. 8 II. Discussion 9 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 10 “creates a ‘gatekeeping’ mechanism for the consideration of second or 11 successive applications in district court.” Felker v. Turpin, 518 U.S. 651, 657 12 (1996); Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998). Under this 13 procedure, “[a]n individual seeking to file a ‘second or successive’ application 14 must move in the appropriate court of appeals for an order directing the district court to consider his application.” Martinez-Villareal, 523 U.S. at 641. 15 Thereafter, the appellate court “may authorize the filing of a second or 16 successive application only if it determines that the application makes a 17 prima facie showing that the application satisfies the requirements of” the 18 AEDPA. 28 U.S.C. § 2244(b)(3)(C); Morales v. Ornoski, 439 F.3d 529, 531 (9th 19 Cir. 2006). If, however, a petitioner files a second petition without obtaining 20 authorization from the appropriate court of appeals to do so, the district court 21 is “without jurisdiction to entertain [the second petition].” Burton v. Stewart, 22 549 U.S. 147, 157 (2007). 23 Here, Petitioner already has filed a federal habeas petition challenging 24 his 2017 convictions, and that petition was denied with prejudice on its 25 merits. See Johnson II, Dkt. Nos. 1, 49, 54, 55. He does not allege that he 26 obtained the requisite authorization from the Ninth Circuit Court of Appeals 27 to file a second or successive petition in this Court challenging his 2017 28

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1 convictions. The current Petition, therefore, appears to be an unauthorized 2 second or successive petition. See Gonzalez v. Crosby, 545 U.S. 524, 532 3 (2005) (explaining that petition is successive within meaning of § 2244(b) 4 where it “seeks to add a new ground for relief” or “if it attacks the federal 5 court’s previous resolution of a claim on the merits”) (emphasis in original); 6 Carranza v. Hill, No. 2:20-04118 CAS (ADS), 2020 WL 8970749, *2 (C.D. Cal. 7 May 12, 2020) (holding that “dismissal with prejudice constituted a decision 8 on the merits and renders subsequent petitions successive under AEDPA”) 9 (citing McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir. 2009)). 10 Moreover, that Petitioner alleges that the Petition’s first claim for relief 11 is based on “newly discovered evidence” [see Pet. at 5] is not sufficient to 12 overcome the bar on unauthorized second or successive petitions. To be sure, 13 “[a] habeas petition is second or successive only if it raises claims that were or 14 could have been adjudicated on the merits.” McNabb, 576 F.3d at 1029. But Petitioner fails to explain why any of the Petition’s claims could not have been 15 raised in his prior federal habeas petition. What’s more, both the Petition’s 16 claims concern appellate counsel’s failure to challenge on appeal the 17 prosecutor’s pretrial actions of amending the information to add counts 18 against Petitioner. [See Pet. at 5-11.] Although Petitioner claims to have 19 unearthed a “newly discovered ‘minute order’’’ that purportedly supports his 20 claims, he cites to the trial transcript to show the order’s existence. [See Pet. 21 at 9, 24-28.] In any event, he undoubtedly knew that he was charged with the 22 crimes of which he was convicted long before he filed his previous federal 23 habeas petition. Thus, he could have asserted his current claims when he 24 filed that petition, rather than attempting to do so now. 25 Accordingly, it appears that the Court lacks jurisdiction to consider the 26 Petition. 27

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l III. Conclusion 2 Petitioner is ordered show cause as to why this action should not be 3 || dismissed without prejudice as an unauthorized second or successive petition 4 || no later than September 30, 2022. If Petitioner alleges that he has 5 || obtained authorization from the Ninth Circuit to file a second or successive 6 || petition challenging his 2017 convictions, he must lodge with the Court the 7 || order from the Ninth Circuit authorizing this Petition. Finally, Petitioner is 8 || admonished that if he does not file a response to this Order within the time 9 || allowed, the Court will recommend that the action be dismissed for lack of 10 || jurisdiction and for failure to prosecute. 1] 12 IT IS SO ORDERED. 13 14 DATED: August 30, 2022. Palisa» Limo oe

PATRICIA DONAHUE

17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28