1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRAYAN MARTIN MEZA, Case No. 2:21-CV-04189 FMO (KES)

12 Petitioner, ORDER DISMISSING HABEAS 13 v. PETITION AS SUCCESSIVE 14 MARCUS POLLARD, Warden,

15 Respondent. 16

17 18 On May 18, 2021, Brayan Martin Meza (“Petitioner”) filed a Petition for 19 Writ of Habeas Corpus by a Person in State Custody pursuant to

. 20 (Dkt. 1 [“Pet.”].1) Petitioner also filed: (1) a request to proceed in forma pauperis 21 (Pet. at 9–14);2 and (2) a consent to proceed before a United States Magistrate

22 1 Citations refer to pagination imposed by the Court’s e-filing system. 23 2 The Court also notes that while Petitioner’s request to proceed in forma 24 pauperis (“IFP”) indicates a zero balance in his prison trust account, he recently made sizeable IFP filing fee payments in several civil cases he has pending. See 25 Meza v. California Health Care Facility, No. 2:18-cv-02315 (C.D. Cal. May 20, 26 2021) (Dkt. 38: $70.00 IFP payment received); Meza v. Borders, No. 2:19-cv- 10297 (C.D. Cal. May 20, 2021) (Dkt. 15: $70.00 IFP payment received); Meza v. 27 Borders, No. 2:19-cv-10295 (C.D. Cal. May 20, 2021) (Dkt. 18: $60.00 IFP 28 payment received). 1 Judge (Dkt. 2).3 The Petition is the third habeas corpus petition that Petitioner has 2 filed in this Court stemming from his 2013 state court conviction and sentence in 3 Los Angeles County Superior Court (Case No. MA054914). 4 Under Rule 4 of the Rules Governing Section 2254 Cases in the United 5 States District Courts, a habeas petition filed by a prisoner in state custody “must” 6 be summarily dismissed “[i]f it plainly appears from the petition and any attached 7 exhibits that the petitioner is not entitled to relief in the district court[.]” For the 8 reasons set forth below, the Petition must be dismissed without prejudice as a 9 second or successive petition pursuant to

(b). 10 I. 11 BACKGROUND 12 A. State Court Proceedings. 13 In 2013, Petitioner was sentenced to prison for a term of forty years to life 14 after a jury convicted him of aiding and abetting second degree murder and found 15 true facts supporting a gang enhancement and firearm enhancement. Meza v. 16 Barretto, No. 2:16-cv-05867 (C.D. Cal. filed Aug. 5, 2016) (“Meza I”) (Dkt. 21 at 17 3).4 Petitioner appealed his conviction (Case No. B250365).

Petitioner 18 challenged the sufficiency of the evidence to support the sentence enhancements 19 3 “[A]ll defendants, even unserved defendants, must consent before a 20 magistrate judge can issue dispositive orders.” Branch v. Umphenour,

994, 1005 (9th Cir. 2019); see Williams v. King,

, 503–04 (9th Cir. 2017). 22 4 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the docket 23 sheets and related documents in Meza I and Meza II. See Shuttlesworth v. City of 24 Birmingham, Ala.,

(1969); see also United States v. Raygoza- Garcia,

(9th Cir. 2018) (“A court may take judicial notice of 25 undisputed matters of public record, which may include court records available 26 through PACER.”); Bias v. Moynihan,

(9th Cir. 2007) (A court “may take notice of proceedings in other courts, both within and without the 27 federal judicial system, if those proceedings have a direct relation to matters at 28 issue.”) (citation omitted). 1 and the related jury instructions, and he also argued that the prosecutor misstated 2 the law during closing arguments.

On March 5, 2015, the Court of Appeal 3 affirmed the conviction.

Petitioner filed a petition for review in California 4 Supreme Court (Case No. S225399).

On May 20, 2015, the California 5 Supreme Court summarily denied discretionary review.

6 In May 2016, Petitioner filed a habeas petition in the Los Angeles County 7 Superior Court, which on May 16, 2016, found the petition “fatally deficient on 8 three independent grounds.” Id. at 4. In June 2016, Petitioner filed a habeas 9 petition in the California Court of Appeal (Case No. B275823), which summarily 10 denied the petition on July 11, 2016. Id. 11 In September 2016, Petitioner filed another habeas petition in the Los 12 Angeles County Superior Court, which was summarily denied on March 3, 2017. 13 Meza v. Borders, No. 2:19-cv-01822 (C.D. Cal. filed March 13, 2019) (Meza II) 14 (Dkt. 42 at 3). In February 2017 and later amended in August 2017, Petitioner filed 15 a habeas petition in the California Supreme Court (Case No. S240065), which was 16 summarily denied on January 16, 2019. Id. In February 2017, Petitioner also filed 17 a habeas petition in the California Court of Appeal (Case No. B280881), which was 18 summarily denied on July 21, 2017. Id. In April 2017, Petitioner filed another 19 habeas petition in the California Court of Appeal (Case No. B282298), which was 20 summarily denied on July 21, 2017. Id. 21 In May 2019, Petitioner filed a habeas petition in the California Supreme 22 Court, which was summarily denied on August 14, 2019. See California Appellate 23 Courts Case Information, Case No. S255883.5 In July 2019, Petitioner filed a 24 habeas petition in the California Court of Appeal, which was summarily denied on 25 August 26, 2019. See California Appellate Courts Case Information, Case No. 26 5 The dockets (and some opinions) of the California Courts of Appeal and the 27 California Supreme Court are available at: <https://appellatecases.courtinfo.ca.gov/ 28 index.cfm>. 1 B299260. In October 2019, Petitioner filed a habeas petition in the California 2 Supreme Court, which was summarily denied on February 11, 2020. See California 3 Appellate Courts Case Information, Case No. S258810. In March 2020, Petitioner 4 filed a habeas petition in the California Court of Appeal, which was summarily 5 denied on March 16, 2020. See California Appellate Courts Case Information, 6 Case No. B304679. In April 2020, Petitioner filed a habeas petition in the 7 California Supreme Court, which was summarily denied on July 8, 2020. See 8 California Appellate Courts Case Information, Case No. S261961. In June 2020, 9 Petitioner filed a habeas petition in the California Court of Appeal, which was 10 summarily denied on June 22, 2020. See California Appellate Courts Case 11 Information, Case No. B306293. 12 In early 2020, Petitioner moved the Los Angeles County Superior Court for 13 resentencing pursuant to California Senate Bill 1437.6 (Pet. at 21.) The request 14 was apparently denied, because an appeal was filed in September 2020 in the 15 California Court of Appeal and remains pending. See California Appellate Courts 16 Case Information, Case No. B307736. 17 B. Prior Federal Habeas Petitions. 18 On August 5, 2016, Petitioner filed his first habeas petition in federal court, 19 which was dismissed without prejudice as wholly unexhausted on February 27, 20 6 Senate Bill 1437, which became effective on January 1, 2019, restricted the 21 circumstances under which a participant in an underlying offense may be found 22 guilty of murder on a felony-murder or natural-and-probable-consequences theory. See

. “The bill created a statutory provision, California Penal 23 Code section 1170.95, allowing sentencing courts to grant retroactive relief to 24 criminal defendants convicted of murder who do not meet the newly restricted criteria.” Esparza v. Lizarraga, No. 2:17-CV-03168-AB-MAA,

, 25 at *3,

, at *7 (C.D. Cal. Aug. 7, 2019), report and 26 recommendation adopted, No. 2:17-CV-03168-AB-MAA,

,

(C.D. Cal. Oct. 28, 2019), certificate of appealability 27 denied sub nom. Esparza v. Asuncion, No. 19-56299,

, 2021

(9th Cir. Mar. 5, 2021). 1 2017. Meza I (Dkt. 1, 21, 25, 26).7 On March 13, 2019, Petitioner filed his second 2 habeas petition in federal court, which was dismissed with prejudice as untimely on 3 February 3, 2020. Meza II (Dkt. 1, 43). 4 On May 18, 2021, Petitioner filed the instant Petition. 5 II. 6 DISCUSSION 7 The instant Petition raises a single claim for relief: ineffective assistance of 8 appellate counsel for failing to raise a claim that the Los Angeles County Superior 9 Court failed to properly instruct the jury in case no. MA054914. (Pet. at 5, 17–18.) 10 The Petition now pending is governed by

(b), which 11 provides in pertinent part as follows: 12 (b)(1) A claim presented in a second or successive habeas corpus 13 application under section 2254 that was presented in a prior 14 application shall be dismissed. 15 (2) A claim presented in a second or successive habeas corpus 16 application under section 2254 that was not presented in a prior 17 application shall be dismissed unless— 18 (A) the applicant shows that the claim relies on a new rule of 19 constitutional law, made retroactive to cases on collateral review by 20 the Supreme Court, that was previously unavailable; or 21 (B)(i) the factual predicate for the claim could not have been 22 discovered previously through the exercise of due diligence; and 23 24

25 7 In November 2015, Petitioner filed a request for extension of time in which 26 to file a writ of habeas corpus, which was dismissed without prejudice on November 24, 2015, for lack of subject matter jurisdiction as an invalid request to 27 seek an advisory opinion. Meza v. The People of the State of California, No. 2:15- 28 cv-08809 (filed Nov. 12, 2015) (Dkt. 1, 3). 1 (11) the facts underlying the claim, if proven and viewed in light 2 of the evidence as a whole, would be sufficient to establish by clear 3 and convincing evidence that, but for constitutional error, no 4 reasonable factfinder would have found the applicant guilty of the 5 underlying offense. 6 (3)(A) Before a second or successive application permitted by this 7 section is filed in the district court, the applicant shall move in the 8 appropriate court of appeals for an order authorizing the district court 9 to consider the application. 10 ||

(b) (emphasis added). 11 The Petition now pending constitutes a second and successive petition 12 || challenging the same conviction as Petitioner’s prior habeas petitions, within the 13 || meaning of

(b). Thus, it was incumbent on Petitioner under 14 || § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing the District 15 || Court to consider his new claim prior to the filing of the instant Petition. 16 || Petitioner’s failure to secure an order from the Ninth Circuit deprives this Court of 17 || subject matter jurisdiction. Cooper v. Calderon,

(9th Cir. 18 |} 2001). IT IS THEREFORE ORDERED that this action be summarily dismissed 19 || pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States 20 || District Courts. 21 LET JUDGMENT BE ENTERED ACCORDINGLY. 22 23 || DATED: May 25, 2021 /s/ FERNANDO M. OLGUIN UNITED STATES DISTRICT JUDGE 25 || Presented by: 26 Tons 6, Scot? 27 || KAREN E. SCOTT 9g || UNITED STATES MAGISTRATE JUDGE