1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CRAIG K. GARRETT, Case No. 2:20-cv-00059-AB-KES 12 Petitioner, ORDER DISMISSING HABEAS 13 v. PETITION AS SUCCESSIVE 14 R.C. JOHNSON, Warden, 15 Respondent. 16 17 I. 18 INTRODUCTION 19 In January 2020, Petitioner Craig K. Garrett (“Petitioner”) filed a Petition for 20 Writ of Habeas Corpus by a Person in State Custody pursuant to

. 21 (Dkt. 1 [“Petition”].) The Petition purports to challenge Petitioner’s 1991 22 conviction for second degree attempted robbery. (Id. at 2.) In the supporting facts, 23 however, Petitioner discusses his arrest on March 10, 2011, for burglary, and the 24 subsequent trial testimony of Detective Linares. (Id. at 5, 9.) These facts relate to 25 his October 2011 burglary conviction. See People v. Garrett, No. YA080544 (Cal. 26 Super. Oct. 25, 2011). 27 28 1 II. 2 FACTUAL BACKGROUND 3 The underlying, italicized facts are taken from the unpublished California 4 Court of Appeal decision on Petitioner’s direct appeal. People v. Garrett, No. 5 B239107,

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(Dec. 26, 2012). 6 Unless rebutted by clear and convincing evidence, these facts may be presumed 7 correct. Tilcock v. Budge,

(9th Cir. 2008); 28 U.S.C. 8 § 2254(e)(1). 9 Prosecution Case 10 John Park lived across the street from Joseph Robinson on West 159th Street 11 in the City of Gardena. On March 10, 2011, at approximately 12:30 p.m. Park 12 looked through his bedroom window and saw [Petitioner] walk up to Robinson’s 13 house, open the security screen and knock on the front door. [Petitioner] knocked 14 on the door for a while before moving to the big glass window in the front of the 15 house. [Petitioner] looked through Robinson’s front window into the house and 16 then went back and knocked on the screen door. No one answered the door and 17 [Petitioner] crouched down and sat by the wall at the front of the house. Park’s 18 view of [Petitioner] was then obscured by a bush at the front of the house. 19 After a few minutes [Petitioner] got up and looked in the window again. He 20 then walked to the end of the porch, looked around, and started doing pull ups from 21 a beam attached to the house. He suddenly “hiked his leg” over a fence next to the 22 porch and entered Robinson’s backyard. [Petitioner] went towards the back door 23 of Robinson’s house and disappeared from Park’s view. Park called 9-1-1 and 24 went outside to his porch when he saw the police arrive. Park saw [Petitioner] 25 walk towards the front of the yard from the garage area at the back. Park yelled 26 and pointed at [Petitioner] who ran towards the back of the pool when he saw 27 Park. [Petitioner] was wearing brown plaid shorts. Police set up a perimeter 28 around the area and attempted to locate [Petitioner]. 1 Gardena Police Officer Nick Beerling responded to the burglary call. He 2 received information that [Petitioner] was seen running in an alley behind West 3 159th Street, approximately 300 yards west of the Robinson residence. [Petitioner] 4 ran towards Officer Beerling, made a sharp turn and ran towards an apartment 5 complex. He was wearing a white tank top, gray shirt, and brown plaid checkered 6 shorts. Officer Beerling broadcast his location and remained at the entrance of the 7 apartment complex for a few minutes until he was asked to respond to another 8 location. 9 At approximately 1:00 p.m. Angelica Hernandez, who lived on West 159th 10 Street, heard police sirens and her dog began barking. She looked outside and saw 11 [Petitioner] pulling clothes out of her car parked in the driveway. Hernandez ran 12 outside and asked [Petitioner] what he was doing on her property. Appellant 13 dropped the clothes and ran through the back of the property. 14 Gardena Police Department Detective Ixtzia Linares saw [Petitioner] on the 15 roof of a residence on the corner of Normandie and West 159th Street. He was 16 wearing a white tank top with brown plaid shorts. [Petitioner] ignored verbal 17 commands from police officers to come down from the roof. After further 18 unsuccessful attempts to convince [Petitioner] to climb down from the roof, 19 Gardena Police Department Detective Luis Villanueva fired a rubber bullet which 20 struck [Petitioner] in the chest. [Petitioner] was arrested and taken into custody. 21 Redondo Beach Police Officer Corey King and his K-9 dog assisted in searching 22 the area. He found a gray T-shirt in the driveway of the adjacent property which 23 was booked into evidence. 24 On March 11, 2011, Detective Linares and other police officers met Robert 25 Bailey at the Robinson residence. Bailey was Robinson’s neighbor and had been 26 taking care of the house for approximately a year while Robinson was in the 27 hospital. Detective Linares noticed a screen missing from the living room window 28 at the back of the house. The screen was not missing when Bailey inspected the 1 house on March 9, the day before the incident. The screen was found at the bottom 2 of Robinson’s pool and had been cut. Bailey had installed new screens for the 3 entire house six months earlier. Detective Linares, who had been trained in lifting 4 prints, lifted a palm print from the window where the screen had been removed and 5 booked it into evidence. 6 Kimberly Swobodzinski, a trained and experienced forensic technician with 7 the Gardena Police Department, compared [Petitioner]’s booking fingerprint and 8 palm print impression with the prints lifted by Detective Linares at the scene. The 9 prints matched. 10 Defense Case 11 Gardena Police Officer Yvette Evans responded to the 9-1-1 call regarding a 12 burglary on West 159th Street on March 10, 2011. She stopped at the Robinson 13 residence and “did a quick visual of the house.” She testified that she did not 14 notice anything unusual. She checked the garage and the west and south sides of 15 the house but did not check all of the back of the house. 16 III. 17 PROCEDURAL HISTORY 18 Petitioner previously filed a § 2254 petition challenging his 2011 conviction. 19 See Garrett v. Gastelo, No. 2:13-cv-05640-AB-LAL,

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Dist. LEXIS 111744 (C.D. Cal. April 27, 2016) (“Garrett I”). Petitioner alleged 21 prosecutorial misconduct, claiming “false evidence related to Detective Reynaga’s 22 claim that he had been at the scene on March 11, 2011 conducting follow up 23 investigation.” (Garrett I, Dkt. 75 at 25.) Regarding that claim, the Court 24 determined, “Petitioner has proven nothing but an immaterial discrepancy in the 25 dispatch log. Officer Ixtzia Linares, Officer Nick Beerling, witness Robert Bailey, 26 and Detective Reynaga all testified that the detective went to the crime scene the 27 day after the crime to conduct further investigation.” (Id. at 26, citing Reporter’s 28 Transcript.) Garrett I was dismissed on the merits, and the Ninth Circuit denied a 1 certificate of appealability. (Garrett I, Dkts. 79, 85.) 2 On January 14, 2020, the Court issued an Order to Show Cause (“OSC”) why 3 the Petition should not be dismissed as successive. (Dkt. 5.) The Court instructed 4 Petitioner that he could discharge the OSC by either: (a) explaining why the instant 5 Petition does not challenge the same conviction as Garrett I, or (b) voluntarily 6 dismissing the instant Petition and filing a request with the Ninth Circuit to file a 7 successive § 2254 petition. (Dkt. 5 at 6-7.) 8 On January 29, 2020, Petitioner responded to the OSC, arguing that the 9 Petition is not successive because the Petition is “based upon new legislative 10 enactments that mandate an evidentiary hearing (at the least) if it could be 11 demonstrated that the prosecutor used misconduct (false evidence) to secure a 12 conviction.” (Dkt. 7 at 1.) 13 IV. 14 CLAIMS 15 Petitioner contends that he is entitled to relief under California Senate Bill 16 1134, enacted into law in 2016, because he has new evidence of prosecutorial 17 misconduct. (Dkt. 1 at 5, 10.) He contends that his due process rights under the 18 Fifth and Fourteenth Amendments were violated. (Id. at 5.) 19 He contends that the prosecutor knowingly presented false evidence at his 20 trial, i.e., Detective Linares’s testimony that he found a damaged screen in the pool. 21 (Id. at 9.) Petitioner contends that this testimony was false because (1) Linares was 22 not actually a detective, and only a detective could do an independent, follow-up 23 investigation, and (2) Detective Reynaga wrote the police report describing the 24 events on March 11, 2011, and in that report, he claimed to have conducted the 25 follow-up investigation that discovered the screen. (Id.) 26 27 28 1 IV. 2 DISCUSSION 3 A. Applicable Law. 4 The Petition now pending is governed by

(b), which 5 provides in relevant part as follows: 6 (b)(1) A claim presented in a second or successive habeas corpus 7 application under section 2254 that was presented in a prior 8 application shall be dismissed. 9 (2) A claim presented in a second or successive habeas corpus 10 application under section 2254 that was not presented in a prior 11 application shall be dismissed unless-- 12 (A) the applicant shows that the claim relies on a new rule of 13 constitutional law, made retroactive to cases on collateral review by 14 the Supreme Court, that was previously unavailable; or 15 (B)(i) the factual predicate for the claim could not have been 16 discovered previously through the exercise of due diligence; and 17 (ii) the facts underlying the claim, if proven and viewed in light 18 of the evidence as a whole, would be sufficient to establish by clear 19 and convincing evidence that, but for constitutional error, no 20 reasonable factfinder would have found the applicant guilty of the 21 underlying offense. 22 (3)(A) Before a second or successive application permitted by this 23 section is filed in the district court, the applicant shall move in the 24 appropriate court of appeals for an order authorizing the district court 25 to consider the application. 26

(b) (emphasis added). 27 Thus, if a California petitioner wishes to file a second federal habeas petition 28 1 based on new law or newly discovered facts, the petitioner must first ask the Ninth 2 Circuit for permission to do so. Without such authorization, the District Court 3 lacks jurisdiction to entertain the successive petition. Cooper v. Calderon,

1270, 1274 (9th Cir. 2001), cert. denied,

(2003). 5 B. Analysis. 6 California Senate Bill 1134, codified at

, provides a 7 statutory basis for certain kinds of state habeas claims. Petitioner contends that 8 Senate Bill 1134 “gives a new basis for habeas relief involving prosecutor 9 misconduct,” and points to a June 18, 2019 letter “from the District Attorney’s 10 Office disclosing that the evidence used against [Petitioner] ‘does not prove 11 conclusively that [Petitioner] broke into the residence.’”1 Plaintiff further contends 12 that these events, both of which occurred after his 2013 Garrett I petition, together 13 constitute “a new rule of constitutional law … made retroactive to cases on 14 collateral review,” making the instant Petition non-successive. (Dkt. 7 at 3-4.) 15 If Petitioner believes that his “claim relies on a new rule of constitutional 16 law, made retroactive to cases on collateral review by the Supreme Court, that was 17 previously unavailable[,]” he must still seek authorization from the Ninth Circuit 18 before filing the Petition. See

(b); but see Bonner v. Gastelo, No. 19 18-09916-DOC-SK,

at *3 (C.D. Cal. Mar. 19, 2019) 20 (finding a successive petition failed to allege a constitutional basis for relief 21 because “SB 1134 is not a new rule of federal constitutional law, much less one that 22 the U.S. Supreme Court has made retroactive”). Thus, the Petition now pending is 23 a successive petition challenging the same conviction as Petitioner’s prior habeas 24

25 1 The letter is attached to the Petition. (See Dkt. 1 at 37.) In its totality, the letter reads: “The Conviction Review Unit must deny your claim due to the lack of 26 new and credible evidence. The existence or non-existence of a palm print at the 27 residence does not prove conclusively that you broke into the residence. The new evidence you provide does not point toward your innocence.” (Id.) 28 1 | petition in Garrett I. It was incumbent on Petitioner under § 2244(b)(3)(A) to 2 | secure an order from the Ninth Circuit authorizing the District Court to consider his 3 || new claims prior to filing the instant Petition. Petitioner’s failure to secure an order 4 | from the Ninth Circuit deprives this Court of subject matter jurisdiction. 5 IT IS THEREFORE ORDERED that this action be summarily dismissed 6 | without prejudice pursuant to Rule 4 of the Rules Governing § 2254 Cases in the 7 | United States District Courts. 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 9 10 (yc. 12 DATED: February 18, 2020 ANDRE BIROTTE JR. 13 United States District Judge 14 15 | Presented by: Tom E. Seater KAREN E. SCOTT 18 | United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28