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4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 FLOYD SCOTT, Case No. CV 19-5737-JVS (KK) 11 Petitioner, ORDER SUMMARILY DISMISSING ACTION WITHOUT PREJUDICE 12 v.

13 STATE OF CALIFORNIA,

14 Respondent.

15 16 17 I. 18 INTRODUCTION 19 On June 19, 2019, Floyd Scott (“Petitioner”) constructively filed1 a “Motion for 20 Rule 60(b) Hearing” which the Court construes as a Petition for Writ of Habeas 21 Corpus by a Person in State Custody (“Petition”) pursuant to

22 challenging his 2008 conviction. On August 7, 2019, the Court issued an Order to 23 Show Cause Why Petition Should Not Be Summarily Dismissed As Second And 24 Successive (“OSC”). On August 19, 2019, Petitioner constructively filed a response 25 to the OSC. For the reasons discussed below, the Court summarily DISMISSES this 26 action without prejudice. 27 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading 1 II. 2 SUMMARY OF PROCEEDINGS 3 On June 21, 1999, Petitioner was convicted of assault to commit rape, forcible 4 oral copulation, penetration by a foreign object, and false imprisonment by violence in 5 Los Angeles County Superior Court. Scott v. Harrington, No. CV 11-5738-GAF 6 (AJW),

, at *1 (C.D. Cal. June 10, 2014), report and 7 recommendation adopted,

(C.D. Cal. July 18, 2014).2 Petitioner 8 was sentenced to state prison for a term of 225 years to life.

9 On March 21, 2003, Petitioner filed a Petition for Writ of Habeas Corpus by a 10 Person in State Custody (“2003 Petition”) pursuant to

in this Court 11 challenging his 1999 conviction. Scott v. Lamarque, Case No. CV 03-2003-GAF 12 (AJW), Dkt. 1. On December 19, 2006, Petitioner’s 2003 Petition challenging his 13 1999 conviction was granted and he was ordered retried or released within 90 days. 14

at Dkt. 42, Judgment.3 15 On August 10, 2008, upon retrial, Petitioner was convicted of one count of 16 assault to commit rape, two counts of forcible oral copulation, one count of 17 penetration by a foreign object, and one count of false imprisonment by violence. 18 Scott v. Asuncion, No. CV 16-2973-JVS (AJW),

, at *1 (C.D. Cal. 19 June 6, 2016), report and recommendation adopted,

(C.D. Cal. 20 June 29, 2016). The jury also found true the allegations that Petitioner tied and bound 21 the victim in the commission of the offenses, had suffered prior felony convictions, 22 23 2 The Court takes judicial notice of its own records and files as well as Petitioner’s 24 prior proceedings in the state courts. Fed. R. Evid. 201(b)(2); In re Korean Air Lines Co.,

, 689 n.1 (9th Cir. 2011); United States v. Wilson,

, 119 25 (9th Cir. 1980). 3 On August 29, 2007, the Court issued an order (a) denying Petitioner’s “request” for 26 immediate release; (b) finding respondent “has been diligent in attempting to provide petitioner with a trial” and has not violated the December 19, 2006 Judgment; and (c) 27 ordering that further requests challenging Petitioner’s detention in state custody 1 and had served a prison term without remaining free of custody for a period of five 2 years.

Petitioner was sentenced to state prison for a term of 275 years to life.

3 Petitioner appealed his conviction to the California Courts of Appeal, which 4 affirmed the judgment in a reasoned decision on October 28, 2009. People v. Scott, 5 No. B210946,

, at *1 (Cal. Ct. App. Oct. 28, 2009). 6 Petitioner then filed a petition for review in the California Supreme Court, 7 which was summarily denied on January 13, 2010. California Courts, Appellate 8 Courts Case Information, Docket, https://appellatecases.courtinfo.ca.gov/search/ 9 case/dockets.cfm?dist=0&doc_id=1924923&doc_no=S177667&request_token=NiI 10 wLSIkTkw3WzBRSSFdVEtJQFw0UDxfJCMuXzxSQCAgCg%3D%3D (last updated 11 Sept. 4, 2019 2:09 PM). 12 On July 4, 2011, Petitioner constructively filed a habeas petition in this Court 13 (the “2011 Petition”) challenging his 2008 conviction and raising the following sixteen 14 claims for relief: 15 1. The admission of the victim’s preliminary hearing testimony violated 16 Petitioner’s right to confrontation. 17 2. The trial court abused its discretion by admitting evidence of 18 Petitioner’s prior rapes. 19 3. Petitioner was denied due process by the admission of evidence of 20 other crimes for the purpose of inferring his propensity to commit the 21 charged offenses. 22 4. The state court lacked jurisdiction over petitioner because it failed to 23 comply with the judgment entered by this Court in Case No. CV 03- 24 2003-GAF(AJW) requiring a retrial within ninety days. 25 5. Admission of the 911 operator’s testimony that the victim said she 26 had been raped deprived Petitioner of his right of confrontation. 27 6. Petitioner received ineffective assistance of counsel. 1 8. Introduction of Petitioner’s prior convictions deprived Petitioner of a 2 fair trial and violated the prohibition against double jeopardy. 3 9. Admission of the prior rape victims’ testimony violated Petitioner’s 4 plea agreement on the prior rape charges because the agreement 5 prohibited the victims from ever testifying against Petitioner. 6 10. The trial court violated Petitioner’s right to represent himself. 7 11. Admission of the victim’s preliminary hearing testimony violated 8 Petitioner’s right to confrontation. 9 12. Petitioner’s sentence after his retrial violated the prohibition against 10 Ex Post Facto laws because it was greater than his sentence after the first 11 trial and it was based upon the Three Strikes Law. 12 13. The trial court deprived Petitioner of a fair trial by providing the jury 13 with faulty instructions and by answering the jury’s question outside of 14 Petitioner’s presence. 15 14. The trial court at the preliminary hearing prevented Petitioner from 16 meaningfully cross-examining the victim and erroneously prevented 17 Petitioner from “going co-counsel.” 18 15. The trial court erroneously admitted evidence of Petitioner’s prior 19 convictions before Petitioner testified and was convicted. 20 16. Petitioner received ineffective assistance of counsel on appeal 21 because appellate counsel failed to raise the issues included in this federal 22 petition. 23 Scott v. Harrington,

, at *3-4; Scott v. Harrington, No. CV 11-5738- 24 GAF (AJW), Dkt. 1. On July 18, 2014, the Court denied the 2011 Petition on the 25 merits and dismissed the action with prejudice. Scott v. Harrington,

3589828. 27 On August 3, 2014, Petitioner filed a notice of appeal of the denial of the 2011 1 71. On March 13, 2015, the Ninth Circuit denied Petitioner’s request for a certificate 2 of appealability.

at Dkt. 79. 3 On June 19, 2019, Petitioner constructively filed the instant Petition 4 challenging his 2008 conviction on the grounds he was not retried within 90 days and 5 the “State withheld the Medical Records of the Alleged Victim which would show the 6 Petitioner to be Factually Innocent, Prosecutorial Misconduct and Ineffective 7 Assistant [sic] of Counsel.” Dkt. 2 at 3-4. On August 7, 2019, the Court issued an 8 OSC as to why the Petition should not be dismissed and instructed Petitioner to 9 respond and explain why “the Petition is not a second and successive petition or 10 show[] that the Ninth Circuit has authorized review of this Petition.” Dkt. 7 at 4. 11 On August 19, 2019, Petitioner filed a Response to the OSC arguing the 12 Petition should not be dismissed as second and successive because he was not retried 13 within 90 days and the medical records will show he is actually innocent. Dkt. 10. 14 The matter thus stands submitted. 15 III. 16 DISCUSSION 17 THE PETITION IS SUBJECT TO DISMISSAL AS 18 SECOND AND SUCCESSIVE 19 A. APPLICABLE LAW 20 Habeas petitioners generally may file only one habeas petition challenging their 21 conviction or sentence. See

(b)(1). Hence, if a prior petition raised a 22 claim that was adjudicated on the merits, a petitioner must “move in the appropriate 23 court of appeals for an order authorizing the district court to consider the [second or 24 successive petition].”

§ 2244(b)(3)(A); McNabb v. Yates,

(9th 25 Cir. 2009); Goodrum v. Busby,

(9th Cir. 2016) (“As a general 26 principle, . . . a petition will not be deemed second or successive unless, at a 27 minimum, an earlier-filed petition has been finally adjudicated.”). Absent proper 1 | second or successive petitions and must dismiss such petitions without prejudice to 2 | refiling if the petitioner obtains the necessary authorization. Burton v. Stewart, 549 3 | U.S. 147, 152-53,

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(2007); Cooper v. Calderon, 274 4 | F.3d 1270, 1274 9th Cir. 2001) (When the AEDPA is in play, the district court may 5 | not, in the absence of proper authorization from the court of appeals, consider a 6 | second or successive habeas application.” (citation omitted));

(b)(2). 7 |B. ANALYSIS 8 Here, the instant Petition challenges the same conviction that was challenged in 9 | the 2011 Petition (i.e., Petitioner’s 2008 conviction), which was adjudicated on the 10 | merits. See Dkt. 2. Consequently, the instant Petition 1s second or successive to the 11 | 2011 Petition. As Petitioner has not presented any documentation indicating the 12 | Ninth Circuit has issued “an order authorizing the district court to consider the 13 | application,” the Court lacks jurisdiction over the claims, and the instant Petition is 14 | subject to dismissal.

(b)(3)(A). 15 IV. 16 ORDER 17 Thus, this Court ORDERS Judgment be entered summarily DISMISSING this 18 | action without prejudice. 19 20 | Dated: September 11, 2019 (] z / 1 7 21 □ ind VY, fetes HONORABLE JAMES WV. SELNA 22 United States District Judge 23 24 | Presented by: 25 26 Ww’ 27 ot ms

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