1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TRACY L. STEWART, Case No. 2:19-cv-06400-KES 12 Petitioner, ORDER GRANTING MOTION TO 13 v. VACATE AND DISMISSING HABEAS 14 JOHNSON, Warden, PETITION AS SUCCESSIVE 15 Respondent. 16 17 I. 18 INTRODUCTION 19 In July 2019, Petitioner Tracy L. Stewart (“Petitioner”) filed a Petition for 20 Writ of Habeas Corpus by a Person in State Custody pursuant to

. 21 (Dkt. 1 [“Petition”].) The Petition challenges Petitioner’s 1986 convictions for 22 multiple counts of kidnapping and robbery. (Id. at 2.) 23 The Court ordered Respondent to respond to the Petition. (Dkt. 4 [“Order 24 Requiring Response”].) The Order Requiring Response noted that while Petitioner 25 had filed a previous federal habeas petition in 2014, it was unclear whether the 26 instant Petition was successive, because the California Court of Appeal had ordered 27 modifications to Petitioner’s sentence that might have resulted in a new judgment. 28 (See Lodged Document [“LD”] 2, Dkt. 19-2.) 1 Respondent moved to vacate the Order Requiring Response, arguing that the 2 Petition is successive because Petitioner filed a prior federal petition in Stewart v. 3 State of California, case no. 90-cv-2337-IH-K, denied on the merits (“Stewart I”). 4 (Dkt. 18; see also LD 6.) In supplemental briefing, Respondent noted that 5 Petitioner had filed a second federal habeas petition in Stewart v. McComber, case 6 no. 2:14-cv-01747-DSF-DFM, which was dismissed as untimely (Stewart II”); 7 Respondent also explained that while the California Court of Appeal modified 8 Petitioner’s judgment in 1986, it did not remand the case for re-sentencing, and 9 therefore no new judgment was entered after 1986. (Dkt. 25 at 6-7, citing LD 2 at 10 18.) As a result, both of Petitioner’s prior federal petitions challenged the same 11 judgment as his instant third federal Petition. 12 Petitioner filed an opposition to Respondent’s initial motion, arguing that he 13 only discovered the factual basis of his habeas claim under Brady v. Maryland, 373

(1963) in April 2018. (Dkt. 23 at 3.) Petitioner also filed an opposition to 15 the supplemental briefing, arguing that the state court of appeal lacked the power to 16 simply “modify” his sentence without remanding the case to the trial court for 17 resentencing. (Dkt. 27.) 18 For the reasons set forth below, the Court (1) GRANTS Respondent’s motion 19 to vacate the Order Requiring Response, and (2) DISMISSES the Petition without 20 prejudice as a successive petition pursuant to

(b). 21 II. 22 DISCUSSION 23 The Petition now pending is governed by

(b), which 24 provides in relevant part as follows: 25 (b)(1) A claim presented in a second or successive habeas corpus 26 application under section 2254 that was presented in a prior 27 application shall be dismissed. 28 (2) A claim presented in a second or successive habeas corpus 1 application under section 2254 that was not presented in a prior 2 application shall be dismissed unless-- 3 (A) the applicant shows that the claim relies on a new rule of 4 constitutional law, made retroactive to cases on collateral review by 5 the Supreme Court, that was previously unavailable; or 6 (B)(i) the factual predicate for the claim could not have been 7 discovered previously through the exercise of due diligence; and 8 (ii) the facts underlying the claim, if proven and viewed in light 9 of the evidence as a whole, would be sufficient to establish by clear 10 and convincing evidence that, but for constitutional error, no 11 reasonable factfinder would have found the applicant guilty of the 12 underlying offense. 13 (3)(A) Before a second or successive application permitted by this 14 section is filed in the district court, the applicant shall move in the 15 appropriate court of appeals for an order authorizing the district court 16 to consider the application. 17

(b) (emphasis added). 18 On the other hand, a second-in-time habeas petition is not “second or 19 successive” if the petition challenges a “new judgment intervening between the two 20 habeas petitions.” Magwood v. Patterson,

(2010) (quoting 21 Burton v. Stewart,

(2007)). “[A]n amended judgment constitutes 22 a new, intervening judgment that renders a subsequent habeas petition not second or 23 successive even if the petition challenges only undisturbed portions of the original 24 judgment.” Gonzalez v. Sherman,

(9th Cir. 2017). 25 It is apparent from the face of the Petition that it attacks the same convictions 26 and sentence as challenged in the 1990 and 2014 federal petitions. Thus, it was 27 incumbent on Petitioner under § 2244(b)(3)(A) to secure an order from the Ninth 28 Circuit authorizing this Court to consider the Petition before filing it in this Court. 1 Petitioner’s failure to do so deprives the Court of subject matter jurisdiction to 2 consider the Petition. See Cooper v. Calderon,

(9th Cir. 2001). 3 Petitioner argues that, on direct appeal, the California Court of Appeal was 4 required to remand his case to the trial court for resentencing. (See Dkt. 27 at 7 5 [“The direct appeal was not complete and final if Petitioner was never resentence[d] 6 due to the invalid statute rendered at sentencing . . . . Here the Courts acknowledge 7 that they ordinarily remand the matter to trial court for resentencing . . . . Here the 8 Courts are flat out admitting to denying a required process.”].) Petitioner cites no 9 law that stands for this proposition. To the contrary, California law permits 10 appellate courts to “reverse, affirm or modify a judgment or order appealed from, 11 . . . and may, if proper, remand the cause to the trial court for such further 12 proceedings as may be just under the circumstances.”

13 Petitioner does not explain how this power impinges on his due process rights, 14 other than the ancillary effect this discretion might have on the timeliness or 15 successiveness of certain federal habeas petitions. That would not amount to a due 16 process claim that would be cognizable on federal habeas review. See Franzen v. 17 Brinkman,

(9th Cir. 1989) (“[A] petition alleging errors in the state 18 post-conviction review process is not addressable through habeas corpus 19 proceedings.”). 20 In sum, the Petition now pending constitutes a successive petition 21 challenging the same convictions as Petitioner’s prior habeas petitions in Stewart I 22 and Stewart II. Thus, it was incumbent on Petitioner under § 2244(b)(3)(A) to 23 secure an order from the Ninth Circuit authorizing the District Court to consider his 24 new claims prior to the filing of the instant Petition. Petitioner’s failure to secure 25 1 Moreover, even if the California Court of Appeal should have remanded to 26 the trial court for resentencing, Petitioner’s current federal petition would still be 27 successive because the trial court has not, in fact, resentenced him yet. Thus, there has been no new, intervening judgment. 28 1 | an order from the Ninth Circuit deprives this Court of subject matter jurisdiction. 2 | Cooper,

. Because the Petition is successive, the Court will 3 | dismiss the Petition without prejudice to the filing of a new action if and when 4 | Petitioner obtains permission to file a successive petition. 5 IT IS THEREFORE ORDERED that (1) Respondent’s motion to vacate the 6 | Order Requiring Response is GRANTED, and (2) the Petition is DISMISSED 7 | without prejudice. 8 & 9 DATED: January 22, 2020 Mn VY, Scot ) KAREN E. SCOTT 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28