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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9 10 FLOYD DEWAINE SCOTT, Case No. CV 21-8309-JVS (KK) 11 Petitioner, ORDER SUMMARILY DISMISSING

ACTION WITHOUT PREJUDICE

12 v.

13 R.C. JOHNSON,

14 Respondent.

15 16 17 I. 18 INTRODUCTION 19 On October 13, 2021, Floyd Dewaine Scott (“Petitioner”) constructively filed1 20 a “Motion for Writ of Mandate to Vacate Conviction for U.S. Constitutional 21 Violations” which the Court construes as a Petition for Writ of Habeas Corpus by a 22 Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254 challenging his 23 2008 conviction. On November 2, 2021, the Court issued an Order to Show Cause 24 Why Petition Should Not Be Summarily Dismissed as Second and Successive 25 (“OSC”). On November 15, 2021, Petitioner constructively filed a response to the 26

27 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the Court deems the pleading constructively filed on the 1 OSC. For the reasons discussed below, the Court summarily DISMISSES this action 2 without prejudice. 3 II. 4 SUMMARY OF PROCEEDINGS 5 On June 21, 1999, Petitioner was convicted of assault to commit rape, forcible 6 oral copulation, penetration by a foreign object, and false imprisonment by violence in 7 Los Angeles County Superior Court. Scott v. Harrington, No. CV 11-5738-GAF 8 (AJW), 2014 WL 3571732, at *1 (C.D. Cal. June 10, 2014), report and 9 recommendation adopted, 2014 WL 3589828 (C.D. Cal. July 18, 2014).2 Petitioner 10 was sentenced to state prison for a term of 225 years to life. Id. 11 On March 21, 2003, Petitioner filed a Petition for Writ of Habeas Corpus by a 12 Person in State Custody (“2003 Petition”) pursuant to 28 U.S.C. § 2254 in this Court 13 challenging his 1999 conviction. Scott v. Lamarque, Case No. CV 03-2003-GAF 14 (AJW), Dkt. 1. On December 19, 2006, the 2003 Petition challenging his 1999 15 conviction was granted and he was ordered retried or released within ninety days. Id. 16 at Dkt. 42, Judgment. On August 29, 2007, the Court, issued an order (a) denying 17 Petitioner’s “request” for immediate release; (b) finding respondent “has been diligent 18 in attempting to provide petitioner with a trial” and has not violated the December 19 19, 2006 Judgment; and (c) ordering further requests challenging Petitioner’s 20 detention in state custody would not be entertained in the closed case and must be 21 filed as a new habeas petition. Id. at Dkt. 60. 22 On August 10, 2008, upon retrial, Petitioner was convicted of one count of 23 assault to commit rape, two counts of forcible oral copulation, one count of 24 penetration by a foreign object, and one count of false imprisonment by violence. 25 Scott v. Asuncion, No. CV 16-2973-JVS (AJW), 2016 WL 3583837, at *1 (C.D. Cal. 26 2 The Court takes judicial notice of its own records and files as well as 27 Petitioner’s prior proceedings in the state courts. FED. R. EVID. 201(b)(2); In re 1 June 6, 2016), report and recommendation adopted, 2016 WL 3607156 (C.D. Cal. 2 June 29, 2016). The jury also found true the allegations that Petitioner tied and bound 3 the victim in the commission of the offenses, had suffered prior felony convictions, 4 and had served a prison term without remaining free of custody for a period of five 5 years. Id. Petitioner was sentenced to state prison for a term of 275 years to life. Id. 6 Petitioner appealed his 2008 conviction to the California Courts of Appeal, 7 which affirmed the judgment in a reasoned decision on October 28, 2009. People v. 8 Scott, No. B210946, 2009 WL 3450270, at *1 (Cal. Ct. App. Oct. 28, 2009). 9 Petitioner then filed a petition for review in the California Supreme Court, 10 which was summarily denied on January 13, 2010. Judicial Council of California 11 Courts, Appellate Courts Case Information, Docket, https://appellatecases.courtinfo. 12 ca.gov/search/case/dockets.cfm?dist=0&doc_id=1924923&doc_no=S177667&requ 13 est_token=NiIwLSIkTkw3WzBRSSFdVEtJQFw0UDxfJCMuXzxSQCAgCg%3D%3 14 D (last visited Dec. 2, 2021 3:00 PM). 15 On July 4, 2011, Petitioner constructively filed a habeas petition in this Court 16 (“2011 Petition”) challenging his 2008 conviction and raising the following sixteen 17 claims for relief: 18 1. The admission of the victim’s preliminary hearing testimony violated 19 Petitioner’s right to confrontation. 20 2. The trial court abused its discretion by admitting evidence of 21 Petitioner’s prior rapes. 22 3. Petitioner was denied due process by the admission of evidence of 23 other crimes for the purpose of inferring his propensity to commit the 24 charged offenses. 25 4. The state court lacked jurisdiction over Petitioner because it failed to 26 comply with the judgment entered by this Court in Case No. CV 03- 27 2003-GAF(AJW) requiring a retrial within ninety days. 1 5. Admission of the 911 operator’s testimony that the victim said she 2 had been raped deprived Petitioner of his right of confrontation. 3 6. Petitioner received ineffective assistance of counsel. 4 7. The prosecutor committed misconduct. 5 8. Introduction of Petitioner’s prior convictions deprived Petitioner of a 6 fair trial and violated the prohibition against double jeopardy. 7 9. Admission of the prior rape victims’ testimony violated Petitioner’s 8 plea agreement on the prior rape charges because the agreement 9 prohibited the victims from ever testifying against Petitioner. 10 10. The trial court violated Petitioner’s right to represent himself. 11 11. Admission of the victim’s preliminary hearing testimony violated 12 Petitioner’s right to confrontation. 13 12. Petitioner’s sentence after his retrial violated the prohibition against 14 Ex Post Facto laws because it was greater than his sentence after the first 15 trial and it was based upon the Three Strikes Law. 16 13. The trial court deprived Petitioner of a fair trial by providing the jury 17 with faulty instructions and by answering the jury’s question outside of 18 Petitioner’s presence. 19 14. The trial court at the preliminary hearing prevented Petitioner from 20 meaningfully cross-examining the victim and erroneously prevented 21 Petitioner from “going co-counsel.” 22 15. The trial court erroneously admitted evidence of Petitioner’s prior 23 convictions before Petitioner testified and was convicted. 24 16. Petitioner received ineffective assistance of counsel on appeal 25 because appellate counsel failed to raise the issues included in this federal 26 petition. 27 1 Scott, 2014 WL 3571732, at *3-4; Scott v. Harrington, No. CV 11-5738-GAF (AJW), 2 Dkt. 1. On July 18, 2014, the Court denied the 2011 Petition on the merits and 3 dismissed the action with prejudice. Scott, 2014 WL 3589828. 4 On August 3, 2014, Petitioner filed a notice of appeal of the denial of the 2011 5 Petition in the Ninth Circuit. Scott v. Harrington, No. CV 11-5738-GAF (AJW), Dkt. 6 71. On March 13, 2015, the Ninth Circuit denied Petitioner’s request for a certificate 7 of appealability. Id. at Dkt. 79. 8 On October 13, 2021, Petitioner constructively filed the instant Petition 9 challenging his 2008 conviction3 on the following grounds: 10 (1) Petitioner was not re-tried “within 90 days”; 11 (2) The state court acted in excess of its jurisdiction by “waiv[ing] the 90 12 days time”; 13 (3) Petitioner was not timely arraigned; 14 (4) Prosecutorial misconduct; 15 (5) The prosecutors failed to honor Petitioner’s 1986 plea agreement; and 16 (6) Ineffective assistance of trial counsel. 17 Dkt. 1 at 16-17. 18 On November 2, 2021, the Court issued an OSC as to why the Petition should 19 not be dismissed and instructed Petitioner to respond and explain why “the Petition is 20 not a second and successive petition or show[] that the Ninth Circuit has authorized 21 review of this Petition.” Dkt. 5 at 4. 22 On November 15, 2021, Petitioner filed a Response to the OSC arguing the 23 Petition should not be dismissed as second and successive. Dkt. 6. Petitioner argues 24 the Petition should have been filed pursuant to the Court’s “continuing jurisdiction” 25 3 On June 19, 2019, Petitioner constructively filed a Petition for Writ of Habeas 26 Corpus by a Person in State Custody (“2019 Petition”) pursuant to 28 U.S.C. § 2254 similarly challenging his 2008 conviction. Scott v. State of California, CV 19-5737- 27 JVS (KK), Dkts. 1, 11. On September 11, 2019, the Court dismissed the 2019 1 in Scott v. Lamarque, Case No. CV 03-2003-GAF (AJW) because the state court lost 2 jurisdiction to retry him when he was not re-tried within ninety days. Id. The matter 3 thus stands submitted. 4 III. 5 THE PETITION IS SUBJECT TO DISMISSAL AS 6 SECOND AND SUCCESSIVE 7 A. APPLICABLE LAW 8 Habeas petitioners generally may file only one habeas petition challenging their 9 conviction or sentence. See 28 U.S.C. § 2244(b)(1). Hence, if a prior petition raised a 10 claim that was adjudicated on the merits, a petitioner must “move in the appropriate 11 court of appeals for an order authorizing the district court to consider the [second or 12 successive petition].” Id. § 2244(b)(3)(A); McNabb v. Yates, 576 F.3d 1028, 1029 (9th 13 Cir. 2009); Goodrum v. Busby, 824 F.3d 1188, 1194 (9th Cir. 2016) (“As a general 14 principle, . . . a petition will not be deemed second or successive unless, at a 15 minimum, an earlier-filed petition has been finally adjudicated.”). Absent proper 16 authorization from the court of appeals, district courts lack jurisdiction to consider 17 second or successive petitions and must dismiss such petitions without prejudice to 18 refiling if the petitioner obtains the necessary authorization. Burton v. Stewart, 549 19 U.S. 147, 152-53 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) 20 (“When the AEDPA is in play, the district court may not, in the absence of proper 21 authorization from the court of appeals, consider a second or successive habeas 22 application.” (citation omitted)); 28 U.S.C. § 2244(b)(2). 23 B. ANALYSIS 24 Here, the instant Petition challenges the same 2008 conviction that was 25 challenged in the 2011 Petition, which was adjudicated on the merits. See dkt. 1. 26 Consequently, the instant Petition is second or successive to the 2011 Petition. As 27 Petitioner has not presented any documentation indicating the Ninth Circuit has 1 | lacks jurisdiction over the claims, and the instant Petition is subject to dismissal. 28 2 | U.S.C. § 2244(b)(3)(A). 3 IV. 4 ORDER 5 Thus, this Court ORDERS Judgment be entered summarily DISMISSING this 6 | action without prejudice. 7 8 | Dated: December 06, 2021 C) [ □□ 4 9 Yom 7 ) J Ne, 10 United States Digeietfedge 11 12 | Presented by: 13 Lealyy he 14) Fee 15 | United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28