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Jurisdiction: California Central District Court
Decision Date: 10/26/2016

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Vierheller v. Montgomery Vierheller v. Montgomery (C.D. Cal., 2016)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DONALD ROBERT VIERHELLER, Petitioner,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        WARREN L. MONTGOMERY, Warden, Respondent.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Case No. EDCV-16-02122-TJH (KES)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        October 26, 2016

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DONALD ROBERT VIERHELLER, Petitioner, v. WARREN L. MONTGOMERY, Warden, Respondent.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Case No. EDCV-16-02122-TJH (KES)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        October 26, 2016

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On October 5, 2016, Donald Robert Vierheller ("Petitioner") filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition"). (Dkt. 2. ) Under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, a habeas petition filed by a person in state custody "must" be summarily dismissed "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. " As more fully explained below, the present Petition must be dismissed as an unauthorized second or successive petition pursuant to 28 U.S.C. § 2244(b).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        I.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        BACKGROUND

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The following facts are taken from the Petition, the Court's own records, or public records; where necessary, the Court takes judicial notice of the latter. See Fed. R. Evid. 201(b)(2) ("The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. "); United States v. Wilson 631 F.2d 118 119 (9th Cir. 1980) ("A court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases. ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        A. Conviction and Direct Appeal

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On June 11, 2001, Petitioner was convicted by a jury of carjacking, automobile theft, and felony false imprisonment. People v. Vierheller 2002 Cal. App. Unpub. LEXIS 6353, at *1 (Cal Ct. App. July 10, 2002). He was sentenced to 25 years to life under California's "Three Strikes" law. Id. at *1-2. Petitioner appealed his conviction to the California Court of Appeal in case no. E029919. Id. The Court of Appeal affirmed the convictions on July 10, 2002. Id. Petitioner filed a petition for review with the California Supreme Court in case no. S109152, but the petition was denied on September 25, 2002. People v. Vierheller 2002 Cal. LEXIS 6287 (Cal. Sept. 25, 2002).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        B. Prior Attempts to Seek Habeas Relief in State and Federal Courts

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On May 5, 2003, Petitioner filed his first petition for writ of habeas corpus under 28 U.S.C. § 2254 in case no. 5: 03-cv-00502-TJH-SGL. After the respondent moved to dismiss for failure to exhaust some of the claims raised therein, the court

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        informed Petitioner that he could either amend his petition to exclude the non-exhausted claims, seek a stay to exhaust those claims in state court, or face dismissal of the entire petition. When Petitioner failed to timely respond, the court dismissed the petition on May 5, 2004. After the dismissal, Petitioner belatedly sought a stay of the proceedings to exhaust his claims in state court; the court denied this request on January 18, 2005.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In 2012, Petitioner renewed his attempts to seek habeas relief. He filed a habeas petition in the California Court of Appeal on November 13, 2012 in case no. E057482. That petition was denied on November 27, 2012. He then filed a habeas petition in the California Supreme Court on February 8, 2013 in case no. S208546. That petition was denied on April 17, 2013.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On June 19, 2013, Petitioner filed a second federal habeas petition under 28 U.S.C. § 2254 in case no. 5: 13-cv-01087-TJH-AN. On June 21, 2013, the court ordered Petitioner to show cause why the petition should not be dismissed as untimely. The court noted that Petitioner had asserted a freestanding claim of actual innocence, and that a credible claim of actual innocence constituted an equitable exception to the one-year statute of limitations in the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). The court described the evidence proffered by Petitioner as follows:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 4

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Case No. 5: 13-cv-01087-TJG-AN, Dkt. 5 at 7-8. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                After reviewing the record, the court determined that the Quintana declaration fell "grossly short" of what is required to bring an untimely petition under the actual innocence exception for several reasons. First, it was inadmissible hearsay of questionable credibility. (Id. at 8. ) Second, even if Hernandez made the alleged statements, they "would not come close to overcoming the evidence at trial, which established" Petitioner's active participation in the carjacking. (Id. ) Third, another of Petitioner's friends had already testified at trial that Hernandez carjacked the victim "to the surprise of both the friend and Petitioner, " and "the jury clearly did not believe the friend's version of events. " (Id. ) Fourth, Hernandez's statements concerned events that took place in 1999, and Petitioner had presented no explanation for the delay in presenting this "new" evidence. " (Id. at 9. ) Petitioner failed to respond to the order to show cause, and his second petition was dismissed as untimely on July 22, 2013.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                After Petitioner's second federal habeas petition was dismissed, he returned to the state courts. He filed a petition for a writ of habeas corpus in the California Court of Appeal on October 13, 2015 in case no. E064622. That petition was

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 5

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        denied on October 20, 2015. He filed a petition for a writ of habeas corpus in the California Supreme Court on May 18, 2015 in case no. S234603. That petition was denied on June 29, 2016.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        C. The Present Petition

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Petition in the present case was filed on October 5, 2016. (Dkt. 2. ) As in his 2013 federal habeas petition, Petitioner asserts that he has "new evidence to prove actual innocence. " (Id. at 5 8(a). ) Similar to what he alleged in the prior petition, Petitioner alleges that in February 2015, Mr. Hernandez made statements tending to exculpate Petitioner, this time to a person named Melahe Khan-Avila. Specifically, Mr. Hernandez allegedly stated that Petitioner did not participate in the carjacking and that Mr. Hernandez did not testify to this effect at trial because the prosecutor advised him that, if he did, an offered plea bargain would be revoked. (Id. at 14. ) Petitioner alleges that these "threats" by the prosecutor were not revealed until February 2015. (Id. at 14-15. ) Petitioner argues that this constitutes new evidence of actual innocence that excuses the untimeliness of his petition under AEDPA. (Id. at 15-16. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        II.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DISCUSSION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Petition now pending is governed by AEDPA, which provides in pertinent part as follows:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 6

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        28 U.S.C. § 2244(b) (emphasis added).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Petition now pending constitutes a second and/or successive petition challenging the same conviction as Petitioner's prior habeas petition, within the meaning of § 2244(b). Thus, it was incumbent on Petitioner under § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing the District Court to consider his new claims prior to the filing of the instant Petition. Petitioner's failure to secure an order from the Ninth Circuit deprives this Court of subject matter jurisdiction. Cooper v. Calderon 274 F. 3d 1270, 1274 (9th Cir. 2001), cert. denied 538 U.S. 984 (2003). Because Petitioner has filed a prior federal habeas petition challenging the same convictions, his claim that his Petition is timely under the actual innocence exception must be considered in the first instance by the Ninth Circuit. See e. g Ghafur v. Perkins 2014 U.S. Dist. LEXIS 5884, at *8 (E. D. Cal. Jan. 16, 2014) ("If Petitioner wishes to argue . . . that sufficient evidence exists to satisfy the 'actual innocence' standard, those are arguments she must bring to the Ninth Circuit, not this Court. In the absence of Ninth Circuit permission, this Court lacks jurisdiction to consider a successive petition. ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 7

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                IT IS THEREFORE ORDERED that this action be summarily dismissed without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                LET JUDGMENT BE ENTERED ACCORDINGLY.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DATED: October 26, 2016

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/_________        TERRY J. HATTER, JR.         UNITED STATES DISTRICT JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Presented by:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        /s/_________KAREN E. SCOTTUnited States Magistrate Judge

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The Court of Appeal did order that the judgment be amended to accurately reflect the trial judge's oral ruling that the felony false imprisonment sentence should be stayed. Vierheller 2002 Cal App. Unpub. LEXIS 6353, at *3.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The Court of Appeal did order that the judgment be amended to accurately reflect the trial judge's oral ruling that the felony false imprisonment sentence should be stayed. Vierheller 2002 Cal App. Unpub. LEXIS 6353, at *3.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Liberman v. Citibank, 538 U.S. 984 (2003)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 2003-04-21 Citations: 0
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