1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD KIMBRO, Case No. 1:18-cv-00980-LJO-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS

THAT COURT GRANT RESPONDENT’S

13 v. MOTION TO DISMISS 14 MULE CREEK STATE PRISON ECF No. 7

WARDEN,

15 ORDER DENYING (1) PETITIONER’S Respondent. MOTION TO HAVE PETITION DECIDED 16 WITHOUT OBJECTION FROM

RESPONDENT AND (2) PETITIONER’S

17 MOTION FOR APPOINTMENT OF

COUNSEL

18 ECF Nos. 11, 12 19 20 Petitioner Richard Kimbro, a state prisoner without counsel, seeks a writ of habeas corpus 21 under 28 U.S.C. § 2254. ECF No. 1. Respondent moves to dismiss the case, contending that this 22 courts lacks jurisdiction to grant habeas relief because the petition is an unauthorized successive 23 petition. We recommend that the court grant respondent’s motion to dismiss. 24 I. Respondent’s Motion to Dismiss 25 A federal court must dismiss a successive petition for a writ of habeas corpus that raises 26 the same claims as a prior petition. See 28 U.S.C. § 2244(b)(1). The court must also dismiss a 27 successive petition raising a new claim unless the petitioner can show that the claim relies on 28 (1) a new rule of constitutional law that applies retroactively or (2) a new fact not previously 1 discoverable through due diligence. 28 U.S.C. § 2244(b)(2)(A)-(B). A court of appeals, not a 2 district court, decides whether a successive petition meets these requirements. Section 3 2244(b)(3)(A) provides: 4 Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the 5 appropriate court of appeals for an order authorizing the district court to consider the application. 6 7 See also Felker v. Turpin, 518 U.S. 651, 656-57 (1996); Nevius v. McDaniel, 104 F.3d 1120, 8 1121 (9th Cir. 1996). Failure to obtain authorization from the appropriate court of appeals is a 9 jurisdictional defect, and a district court presented with an unauthorized successive petition must 10 dismiss it for lack of jurisdiction. See Burton v. Stewart, 549 U.S. 147, 157 (2007). 11 Here, petitioner challenges his sentence imposed by the Mariposa County Superior Court 12 for his 2005 conviction for various sex offenses against children. See generally ECF No. 1; 13 People v. Kimbro, No. F048126, 2006 WL 2059614 (Cal. Ct. App. July 25, 2006). Petitioner has 14 sought federal habeas relief from this court in the past, challenging the same 2005 judgment. See 15 Kimbro v. Warden at High Desert State Prison, No. 1:08-cv-1509 (E.D. Cal. filed Oct. 6, 2008); 16 Kimbro v. Warden R. Subia, No. 1:07-cv-921 (E.D. Cal. filed Jun. 13, 2007). The first habeas 17 petition, which the court dismissed without prejudice for petitioner’s failure to exhaust, does not 18 make subsequent petitions successive. See Slack v. McDaniel, 529 U.S. 473, 485-86 (2000); 19 Kimbro, No. 1:07-cv-921, ECF No. 26. The second habeas petition, however, was dismissed as 20 untimely, and that dismissal constitutes a “permanent and incurable” bar that makes subsequent 21 petitions successive. See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009); Kimbro, 22 No. 1:08-cv-1509, ECF No. 32. Petitioner is challenging the same judgment he challenged in a 23 prior petition that was dismissed as untimely, so the petition in this case is successive. Petitioner 24 has not obtained authorization from the Ninth Circuit to proceed on a successive petition. 25 Petitioner does not deny that his petition in this case is successive or that he has not 26 obtained authorization from the Ninth Circuit, but he opposes respondent’s motion to dismiss, 27 arguing that that the motion is untimely. ECF No. 13 at 1-2. He is mistaken. The court ordered a 28 response to the petition on September 4, 2018, and set a sixty-day deadline for the response. 1 ECF No. 4 at 1-2. The sixty-day period ended on November 3, 2018. Because November 3, 2 2018, was a Saturday, respondent had until the next business day, Monday, November 5, 2018, to 3 respond to the petition. See Fed. R. Civ. P. 6(a)(1)(C). Respondent’s motion to dismiss was filed 4 on Monday, November 5, 2018, so it was timely. Moreover, a federal court has an independent 5 duty to examine its jurisdiction, and that duty requires the court to resolve any issue on subject 6 matter jurisdiction even without any objection from a party. See Kwai Fun Wong v. Beebe, 732 7 F.3d 1030, 1036 (9th Cir. 2013). 8 The petition is successive, and petitioner has not obtained authorization from the Ninth 9 Circuit to proceed on a successive petition. We therefore lack jurisdiction and must dismiss the 10 case. 11 II. Petitioner’s Motion to Have Petition Decided without Objection from Respondent 12 Petitioner asks that the court decide the petition without any objection from respondent. 13 ECF No. 11. He repeats the same argument that respondent’s motion to dismiss is untimely. 14 Again, respondent’s motion is timely, and any delay cannot overcome the jurisdictional defect. 15 Petitioner’s request is denied. 16 III. Petitioner’s Motion for Appointment of Counsel 17 Petitioner moves for appointment of counsel. ECF No. 12. We will deny petitioner’s 18 motion. 19 Under 18 U.S.C. § 3006A(a)(2)(B), a district court may appoint counsel for a “financially 20 eligible” petitioner if “the interests of justice so require.” A habeas petitioner is financially 21 eligible for counsel if he cannot afford counsel. See generally Admin. Office of the U.S. Courts, 22 Guide to Judiciary Policies and Procedures, Vol. 7, pt. A, § 210.40.30(b). The “interests of 23 justice” standard is a context-specific inquiry, Martel v. Clair, 565 U.S. 648, 663 (2012), and no 24 bright-line rule exists, but courts have denied motions for counsel in cases that present no 25 likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 26 We will deny petitioner’s motion for counsel because this case presents no likelihood of 27 success on the merits. Petitioner raises three habeas claims: (1) the state trial court unlawfully 28 sentenced him to fifteen years to life, which exceeded the maximum sentence of eight years under 1 the applicable sentencing scheme; (2) the prosecutor lied to petitioner before entering into a plea 2 agreement by stating that a sentence of fifteen to life was mandatory; (3) petitioner received 3 ineffective assistance of counsel because his trial attorney agreed with the prosecutor that fifteen 4 years to life was mandatory. ECF No. 1 at 6-12, 19-25. All three claims depend on petitioner’s 5 belief that he was not subject to a mandatory minimum sentence of fifteen years to life, but he is 6 mistaken. 7 Under the version of California Penal Code Section 667.61(b) that was applicable to 8 petitioner’s sentencing,1 a criminal defendant was subject to a mandatory minimum sentence of 9 fifteen years to life if two conditions were satisfied: (1) the defendant was convicted of one of the 10 qualifying offenses listed under Section 667.61(c); and (2) one of the circumstances listed under 11 Section 667.61(e) existed. As for the first condition, lewd and lascivious conduct with a child 12 under the age of fourteen was a qualifying offense unless the defendant qualified for probation 13 under Section 1203.066(c). See Cal. Penal Code § 667.61(c)(7). Under Section 1203.066(c), the 14 defendant could qualify for probation only if he had satisfied numerous conditions, including that 15 probation would be in the best interest of the child. As for the second condition, being convicted 16 of lewd and lascivious conduct with a child under the age of fourteen against more than one 17 victim established one of the listed circumstances. See Cal. Penal Code § 667.61(e)(5). 18 Here, petitioner was subject to a mandatory minimum sentence of fifteen years to life. 19 He was convicted of a qualifying offense after pleading guilty to six counts of lewd and 20 lascivious conduct with a child under the age of fourteen. See ECF No. 1 at 36; Kimbro, 2006 21 WL 2059614, at *1. Obtaining probation would have been difficult: petitioner had admitted that 22 he had molested his young step daughters, and the trial judge stated at sentencing that it was 23 “appropriate to remove [petitioner] from society” so that he would place “no children” in danger. 24 ECF No. 1 at 68. Because petitioner had admittedly molested two young victims, the multiple- 25 victim circumstance applied as well. Indeed, as one state court has noted, petitioner would have 26 1 The pertinent statutory provisions have been amended, so we rely on the versions applicable at 27 sentencing. In any event, for our purposes, the text has not changed in any meaningful way. See Cal. Penal Code § 667.61(b). 28 1 faced an aggregate term of ninety years to life had he not entered into a plea agreement. Kimbro, 2 2006 WL 2059614, at *5. The sentence petitioner received was the bare minimum. 3 Given these circumstances, we cannot say that this case presents a likelihood of success 4 for petitioner. Petitioner’s motion for appointment of counsel is denied. 5 IV. Certificate of Appealability 6 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 7 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 8 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 9 requires a district court to issue or deny a certificate of appealability when entering a final order 10 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 11 1268, 1270 (9th Cir. 1997). Where, as here, the court denies habeas relief on procedural grounds 12 without reaching the underlying constitutional claims, the court should issue a certificate of 13 appealability “if jurists of reason would find it debatable whether the petition states a valid claim 14 of the denial of a constitutional right and that jurists of reason would find it debatable whether the 15 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 16 Reasonable jurists would not find our decision debatable or conclude that the petition 17 should proceed further. Thus, the court should decline to issue a certificate of appealability. 18 V. Order 19 1. Petitioner’s motion to have his petition decided without objection from respondent, 20 ECF No. 11, is denied. 21 2. Petitioner’s motion for appointment of counsel, ECF No. 12, is denied. 22 VI. Findings and recommendations 23 We recommend that the court grant respondent’s motion to dismiss, ECF No. 7, and 24 decline to issue a certificate of appealability. 25 We submit the findings and recommendations to the U.S. District Court Judge who is 26 assigned to the case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice 27 for the United States District Court, Eastern District of California. Within fourteen days of the 28 service of the findings and recommendations, petitioner may file written objections to the 1 | findings and recommendations with the court and serve a copy on all parties. That document 2 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 3 | assigned District Judge will then review the findings and recommendations under 28 U.S.C. 4 1 § 636(b)(1)(C). 5 6 IT IS SO ORDERED. ’ g : —N prssann — Dated: _ August 5, 2019 8 UNI STATES MAGISTRATE JUDGE 9 10 11 No. 202 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28