1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ) MARK A. HODGE, ) Case No. CV 20-2257-TJH (JEM) 12 ) Petitioner, ) 13 ) MEMORANDUM AND ORDER v. ) DISMISSING SUCCESSIVE PETITION 14 ) FOR WRIT OF HABEAS CORPUS AND NEIL MCDOWELL, ) DENYING CERTIFICATE OF 15 ) APPEALABILITY Respondent. ) 16 ) 17 On March 9, 2020, Mark A. Hodge (“Petitioner”), a prisoner in state custody 18 proceeding pro se, filed a petition for writ of habeas corpus pursuant to

19 (“Petition”), in which he challenges his 1996 state court judgment of conviction in Los 20 Angeles County Superior Court Case No. YA029417 (the “1996 conviction”). (Petition at 2.) 21 Petitioner has filed at least four other petitions in this Court challenging the 1996 conviction.1 22 For the reasons set forth below, the Petition must be dismissed as an unauthorized 23 successive habeas petition. 24 25 26 27 1 See Mark Hodge v. Cheryl Pliler, CV 00-5688-TJH (JWJ); Mark Hodge v. M.D. Bider, CV 11-0976-TJH (JEM); Mark Hodge v. C. Gibson, CV 12-9049-TJH (JEM); Mark Hodge v. Warden, CV 28 1 PROCEEDINGS 2 The 1996 Conviction 3 On November 18, 1996, Petitioner was convicted in Los Angeles County Superior 4 Court of carjacking, second degree robbery, and misdemeanor hit-and-run driving (Cal. 5 Penal Code §§ 215, 211; Cal. Veh. Code § 20002A). The court sentenced Petitioner under 6 California’s Three Strikes law to thirty-five years to life in state prison. (Petition at 2; Report 7 and Recommendation in Case No. CV 00-5688-TJH (JWJ), filed May 13, 2002 (“May 2002 8 R&R”) at 1-2.)2 9 State Post-Conviction Proceedings 10 Petitioner appealed his conviction, which was affirmed by the California Court of 11 Appeal on November 7, 1997. (Petition at 2-3; May 2002 R&R at 2.) 12 Petitioner filed a petition for review in the California Supreme Court, which was 13 denied on January 28, 1998. (Petition at 3; May 2002 R&R at 2.) 14 Thereafter, Petitioner exhausted his remedies in state court. (May 2002 R&R at 2.) 15 Federal Habeas Proceedings 16 On May 25, 2000, Petitioner filed a petition for writ of habeas corpus in the United 17 States District Court for the Central District of California, Mark Hodge v. Cheryl Pliler, 18 Warden, Case No. CV 00-5688-TJH (JWJ) (“2000 Federal Petition”), in which he attacked 19 the 1996 conviction.3 20 On May 13, 2002, the Magistrate Judge filed a Report and Recommendation 21 recommending that the 2000 Federal Petition be denied on the merits and dismissed with 22 prejudice. On June 6, 2002, the District Judge issued an Order adopting the Report and 23 Recommendation and entered Judgment denying the 2000 Federal Petition and dismissing 24 it with prejudice. 25 26 2 Petitioner initially was sentenced to 47 years to life in state prison. On appeal, his sentence was reduced to 35 years to life. (Petition at 3; May 2002 R&R at 2-3.) 27 3 The Court takes judicial notice of its own files and records in the case Mark Hodge 28 1 On March 9, 2020, Petitioner filed the instant Petition, which also attacks the 1996 2 conviction. 3 DISCUSSION 4 I. DUTY TO SCREEN 5 This Court has a duty to screen habeas corpus petitions. See Rules Governing § 6 2254 Cases in the United States District Courts, Rule 4 Advisory Committee Notes. Rule 4 7 requires a district court to examine a habeas corpus petition, and if it plainly appears from 8 the face of the petition and any annexed exhibits that the petitioner is not entitled to relief, 9 the judge shall make an order for summary dismissal of the petition. Id.; see also Local 10 Rule 72-3.2. The notes to Rule 4 state: “‘a dismissal may be called for on procedural 11 grounds, which may avoid burdening the respondent with the necessity of filing an answer 12 on the substantive merits of the petition.’” See Boyd v. Thompson,

, 1127-28 13 (9th Cir. 1998); White v. Lewis,

(9th Cir. 1989). 14 II. THE PETITION IS SUBJECT TO SUMMARY DISMISSAL AS A SECOND OR SUCCESSIVE PETITION 15 The Petition is governed by the provisions of the Antiterrorism and Effective Death 16 Penalty Act of 1996 (“AEDPA”). AEDPA amended

(b) to read, in pertinent 17 part, as follows: 18 (b)(1) A claim presented in a second or successive habeas 19 corpus application under section 2254 that was presented in a prior 20 application shall be dismissed. 21 (2) A claim presented in a second or successive habeas corpus 22 application under section 2254 that was not presented in a prior 23 application shall be dismissed unless – 24 (A) the applicant shows that the claim relies on a new rule 25 of constitutional law, made retroactive to cases on collateral 26 review by the Supreme Court, that was previously unavailable; or 27 28 1 (B)(i) the factual predicate for the claim could not have 2 been discovered previously through the exercise of due 3 diligence; and [¶] (ii) the facts underlying the claim, if proven and 4 viewed in light of the evidence as a whole, would be sufficient to 5 establish by clear and convincing evidence that, but for 6 constitutional error, no reasonable factfinder would have found 7 the applicant guilty of the underlying offense. 8 (3)(A) Before a second or successive application permitted by 9 this section is filed in the district court, the applicant shall move in the 10 appropriate court of appeals for an order authorizing the district court to 11 consider the application. 12

(b)(1)-(3)(A); see also Rule 9 of the Rules Governing § 2254 Cases in the 13 United States District Courts. 14 The Petition challenges the validity of the 1996 conviction and, therefore, it is a 15 second or successive petition.4 “If an application is ‘second or successive,’ the petitioner 16 must obtain leave from the Court of Appeals before filing it with the district court.” Magwood 17 v. Patterson,

(2010). There is no indication in the record that 18 Petitioner has obtained permission from the Ninth Circuit Court of Appeals to file a second 19 20 4 Ninth Circuit Rule 22-3(a) provides that “if an application for authorization to file a 21 second or successive section 2254 petition . . . is mistakenly submitted to the district court, 22 the district court shall refer it to the court of appeals.” Rule 22-3(a) also permits the district court to refer a second or successive 2254 petition to the Ninth Circuit in the interests of 23 justice. In this case, there is no indication that the instant Petition is actually an application for authorization to file a second or successive petition that was mistakenly filed here, and 24 the Court declines to construe it as such. The Court also does not find that it is in the interests of justice to refer the Petition to the Ninth Circuit under Rule 22-3(a) because the 25 Petition is patently frivolous, it is Petitioner’s fourth successive habeas petition, he has 26 already been advised of the requirement to seek the Ninth Circuit’s permission prior to filing another habeas petition challenging his 1996 conviction, and his previous attempt to gain 27 such permission has been denied by the Ninth Circuit (see infra note 5). If Petitioner seeks authorization to file a successive habeas petition, he should submit his application directly to 28 1 or successive petition.5 “When the AEDPA is in play, the district court may not, in the 2 absence of proper authorization from the court of appeals, consider a second or successive 3 habeas application.” Cooper v. Calderon,

(9th Cir. 2001) (per curiam) 4 (internal quotation marks and citation omitted); accord Burton v. Stewart,

, 152 5 (2007) (per curiam). Because the Petition is a “second or successive” petition, the Court 6 cannot consider it on the merits. See Magwood,

(“if [petitioner’s] 7 application [is] ‘second or successive,’ the District Court [must] dismiss[] it in its entirety 8 because [petitioner] failed to obtain the requisite authorization from the Court of Appeals[]”); 9 accord Burton,

. Accordingly, the Court will dismiss the Petition without 10 prejudice to Petitioner filing a new action if he obtains permission from the Ninth Circuit to 11 file a successive petition.6 12 CERTIFICATE OF APPEALABILITY 13 Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court “must 14 issue or deny a certificate of appealability when it enters a final order adverse to the 15 applicant.” 16 The Court has found that the Petition should be dismissed without prejudice as an 17 unauthorized second or successive petition. For the reasons stated above, the Court 18 concludes that Petitioner has not made a substantial showing of the denial of a 19 constitutional right, as is required to support the issuance of a certificate of appealability. 20 See

(c)(2). 21 22 23 5 On September 13, 2007, the Ninth Circuit issued an Order denying Petitioner’s application for authorization to file a second or successive habeas petition. Hodge v. Pliler, 24 CV 00-5688-TJH (JWJ), Docket No. 45. Thus, it is clear that Petitioner is aware of the 25 requirement to obtain the Ninth Circuit’s authorization before filing another petition challenging the 1996 conviction. 26 6 If Petitioner obtains the Ninth Circuit’s permission to file a successive petition, he 27 should file a new petition for writ of habeas corpus. He should not file an amended petition in this action or use the case number from this action because the instant action is being 28 1 ORDER 2 IT IS HEREBY ORDERED that: (1) the Petition is dismissed without prejudice; and 3] (2) a certificate of appealability is denied. IT 1S SO ORDERED. 5 _— Je. _ 4 6} DATED: March 27, 2020 a ¢ ° gotfe TERRY J. PATTER, JR. ; 7 UNITED STATES DISTRICT JODGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28