Kevin Daniel Driscoll v. Josie Gastelo
2:17-cv-07756
C.D. Cal.Nov 9, 2017Background
- Petitioner Kevin Driscoll was convicted in 1999 in Los Angeles County of second‑degree murder with a firearm enhancement (aggregate sentence 40 years to life).
- Driscoll previously filed a federal habeas petition (Driscoll I) in the Central District of California; that action was dismissed with prejudice in 2005 and certificates of appealability were denied up to the Supreme Court in 2008.
- In 2017 Driscoll filed a new § 2254 petition in this District challenging the § 12022.53 firearm enhancement (claiming insufficient proof and facial vagueness) and asserting actual innocence to excuse AEDPA limitations.
- Driscoll also filed a Rule 60(b) motion in the prior case seeking relief based on the same theories (contending § 12022.53(d) does not require a gang finding and thus he is actually innocent of the enhancement).
- The Ninth Circuit application for authorization to file a successive petition was pending; the district court concluded it lacked jurisdiction to hear the new petition or Rule 60(b) motion because authorization is required under AEDPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court has jurisdiction to consider Driscoll’s 2017 § 2254 petition attacking the same conviction | Driscoll argued his successive petition alleges actual innocence and challenges the firearm enhancement, so the district court should hear it | Respondent (and AEDPA) argued the petition is “second or successive” and the district court lacks jurisdiction absent Ninth Circuit authorization | Court held it lacked jurisdiction and summarily dismissed the petition because Driscoll did not obtain appellate authorization |
| Whether Driscoll’s Rule 60(b) motion in Driscoll I can be used to raise new claims about the § 12022.53 enhancement | Driscoll sought Rule 60(b) relief to advance new substantive claims (actual innocence/inapplicability of § 12022.53(d)) | Respondent argued Rule 60(b) cannot be used to circumvent AEDPA’s gatekeeping for successive habeas petitions | Court held Rule 60(b) cannot be used to present new substantive habeas claims; such a motion is impermissible if it effectively is a successive petition |
| Whether asserted actual innocence removes AEDPA’s successive‑petition bar or tolling requirements | Driscoll contended actual innocence excuses the one‑year limitations and permits consideration of new claims | Respondent relied on AEDPA and precedent requiring appellate authorization before district courts may consider successive petitions, regardless of asserted actual innocence | Court held asserted actual innocence does not negate the jurisdictional requirement; district court still needs Ninth Circuit authorization |
Key Cases Cited
- Burton v. Stewart, 549 U.S. 147 (2007) (district courts lack jurisdiction to consider second or successive habeas petitions without court-of-appeals authorization)
- Gonzalez v. Crosby, 545 U.S. 524 (2005) (Rule 60(b) cannot be used to present new claims that would circumvent AEDPA’s successive-petition requirements)
- Magwood v. Patterson, 561 U.S. 320 (2010) (a new petition attacking the same state-court judgment is successive)
- Lindh v. Murphy, 521 U.S. 320 (1997) (AEDPA applies to habeas petitions filed after its enactment)
- Cooper v. Calderon, 274 F.3d 1270 (9th Cir. 2001) (district courts cannot consider successive habeas petitions absent proper appellate authorization)
- Williams v. Thaler, 602 F.3d 291 (5th Cir. 2010) (actual innocence claim does not avoid requirement of court-of-appeals authorization for successive petitions)
- Jones v. Ryan, 733 F.3d 825 (9th Cir. 2013) (Rule 60(b) motion that raises new claims may be treated as a successive habeas petition)
- Doe v. Ayers, 782 F.3d 425 (9th Cir. 2015) (Rule 60(b) motions that are disguised habeas petitions are impermissible under AEDPA)