(HC) Broussard v. Walker, No. 1:2009cv01521 - Document 21 (E.D. Cal. 2010)
Court Description: ORDER Directing The Clerk To Substitute Tim Virga As Respondent, ORDER Deeming Petitioner's Traverse And Motion And Addemdum Thereto (Docs. 16 , 20 ) To Be An Opposition To The Petition, ORDER Granting Respondent's Request For Judicial No tice, ORDER Granting Respondent's Motion To Dismiss For Lack Of Subject Matter Jurisdiction Dismiss (Doc. 15 ), ORDER Directing Dismissal Of The Action, ORDER Declining To Issue A Certificate Of Appealability, signed by Magistrate Judge Sheila K. Oberto on 10/19/2010. CASE CLOSED. (Fahrney, E)
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(HC) Broussard v. Walker Doc. 21 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LOUIS JOSEPH BROUSSARD, 11 Petitioner, 12 13 14 15 v. TIM VIRGA, Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—01521-SKO-HC ORDER DIRECTING THE CLERK TO SUBSTITUTE TIM VIRGA AS RESPONDENT ORDER DEEMING PETITIONER’S TRAVERSE AND MOTION AND ADDENDUM THERETO (DOCS. 16, 20) TO BE AN OPPOSITION TO THE PETITION ORDER GRANTING RESPONDENT’S REQUEST FOR JUDICIAL NOTICE 17 ORDER GRANTING RESPONDENT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION DISMISS (Doc. 15) 18 19 20 ORDER DIRECTING DISMISSAL OF THE ACTION 21 ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 22 23 24 Petitioner is a state prisoner who is proceeding pro se and 25 in forma pauperis with a petition for writ of habeas corpus 26 pursuant to 28 U.S.C. § 2254. 27 the parties have consented to the jurisdiction of the United 28 States Magistrate Judge to conduct all further proceedings in the Pursuant to 28 U.S.C. § 636(c)(1), 1 Dockets.Justia.com 1 case, including the entry of final judgment, by manifesting their 2 consent in writings signed by the parties or their 3 representatives and filed by Petitioner on September 30, 2009, 4 and on behalf of Respondent on June 28, 2010. 5 Pending before the Court is Respondent’s motion to dismiss 6 the petition, filed and served on Petitioner on July 26, 2010. 7 On August 16, 2010, Petitioner filed in response to the motion a 8 “Traverse” and motion to grant habeas corpus relief due to a 9 miscarriage of justice and actual innocence. 10 The Court DEEMS this document to be an opposition to 11 Respondent’s motion to dismiss. 12 by Respondent, the Court will further CONSIDER Petitioner’s 13 addendum to his traverse, filed on September 20, 2010, as part of 14 his opposition to the motion to dismiss. In the absence of any objection 15 Respondent filed a reply on August 23, 2010. 16 I. 17 Title 28 U.S.C. § 2242 provides that a petition for writ of Substitution of Tim Virga as the Proper Respondent 18 habeas corpus shall allege the name of the person who has custody 19 over the applicant. 20 2254 Cases in the District Courts (Habeas Rules) provides that if 21 the petitioner is currently in custody under a state-court 22 judgment, the petition must name as respondent the state officer 23 who has custody. 24 Rule 2(a) of the Rules Governing Section The respondent must have the power or authority to provide 25 the relief to which a petitioner is entitled. 26 392 F.3d 350, 355 n. 3 (9th Cir. 2004). 27 proper respondent destroys personal jurisdiction. 28 California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 2 Smith v. Idaho, A failure to name the Stanley v. 1 However, personal jurisdiction, including the requirement of 2 naming the technically correct custodian under § 2242 and the 3 Habeas Rules, may be forfeited or waived on behalf of the 4 immediate custodian by the relevant government entity, such as 5 the state in a § 2254 proceeding. 6 355-56, 356 n. 4 (9th Cir. 2004) (where the state conceded it had 7 waived lack of jurisdiction over a petitioner’s immediate 8 custodian and submitted itself in his stead to the jurisdiction 9 of the federal courts). Smith v. Idaho, 392 F.3d 350, A court has the discretion to avoid 10 delay and waste of the resources of the court and the parties by 11 recognizing a waiver instead of requiring formal amendment of the 12 petition by the petitioner. Id. at 356 n.6. 13 Here, Petitioner, who is incarcerated at the California 14 State Prison at Sacramento (SAC), initially named James Walker as 15 Respondent. (Pet. 1.) 16 Respondent states that the proper respondent is Tim Virga, who 17 currently acts as the warden at SAC, where Petitioner is housed. 18 (Mot. 1 n.1.) 19 is filed on behalf of the Respondent. 20 the Court substitute Tim Virga as Respondent pursuant to Rule 21 25(d) of the Federal Rules of Civil Procedure. 22 Rule 25(d) provides that a court may at any time order 23 substitution of a public officer who is a party in an official 24 capacity whose predecessor dies, resigns, or otherwise ceases to 25 hold office. 26 However, in the motion to dismiss, Further, it is stated that the motion to dismiss Respondent requests that (Mot. 1 n.1.) The Court concludes that Tim Virga, Acting Warden of SAC, is 27 an appropriate respondent in this action, and that pursuant to 28 Fed. R. Civ. P. 25(d), he should be substituted in place of James 3 1 Walker. 2 II. 3 A federal court is a court of limited jurisdiction which has Consideration of the Motion to Dismiss 4 a continuing duty to determine its own subject matter 5 jurisdiction and to dismiss an action where it appears that the 6 Court lacks jurisdiction. Fed. R. Civ. P. 12(h)(3); CSIBI v. 7 Fustos, 670 F.2d 134, 136 n. 3 (9th Cir. 1982) (citing City of 8 Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); Billingsley v. 9 C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). 10 Respondent has filed a motion to dismiss the petition on the 11 ground that this Court lacks subject matter jurisdiction over the 12 petition because it is successive and thus is barred by 28 U.S.C. 13 § 2244. 14 Rule 4 of the Rules Governing Section 2254 Cases (Habeas 15 Rules) allows a district court to dismiss a petition if it 16 “plainly appears from the face of the petition and any exhibits 17 annexed to it that the petitioner is not entitled to relief in 18 the district court....” 19 The Ninth Circuit has allowed respondents to file motions to 20 dismiss pursuant to Rule 4 instead of answers if the motion to 21 dismiss attacks the pleadings by claiming that the petitioner has 22 failed to exhaust state remedies or has violated the state’s 23 procedural rules. 24 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 25 a petition for failure to exhaust state remedies); White v. 26 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 27 review a motion to dismiss for state procedural default); Hillery 28 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). See, e.g., O’Bremski v. Maass, 915 F.2d 418, 4 1 Thus, a respondent may file a motion to dismiss after the Court 2 orders the respondent to respond, and the Court should use Rule 4 3 standards to review a motion to dismiss filed before a formal 4 answer. 5 See, Hillery, 533 F. Supp. at 1194 & n. 12. Here, Respondent’s motion to dismiss is based on lack of 6 subject matter jurisdiction. 7 procedural posture to a motion to dismiss for failure to exhaust 8 state remedies or for state procedural default. 9 although the motion is opposed, the motion does not raise 10 material factual disputes concerning the operative facts. 11 Finally, Respondent has not yet filed a formal answer. 12 Respondent’s motion is similar in Further, The Court therefore exercises its discretion to review 13 Respondent’s motion to dismiss pursuant to its authority under 14 Rule 4. 15 III. 16 17 Motion to Dismiss the Petition A. Background The petition in this proceeding was filed on August 28, 18 2009. 19 County Superior Court of assault upon a prisoner pursuant to Cal. 20 Pen. Code § 4501. 21 constituted a miscarriage of justice and an act in excess of the 22 trial court’s jurisdiction because his status as a prisoner 23 already serving a life term rendered § 4501 inapplicable to him. 24 (Pet. 1.) 25 26 Petitioner challenges his conviction in 1989 in the Kern B. Petitioner argues that the conviction Second or Successive Petition Respondent moves to dismiss the petition on the ground that 27 this Court lacks subject matter jurisdiction over the petition 28 because it is a second or successive petition. 5 1 Because the petition in the present case was filed after the 2 enactment of the Antiterrorism and Effective Death Penalty Act of 3 1996 (AEDPA), the AEDPA applies to the petition. 4 Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 5 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 6 must, therefore, be determined whether the petition in the 7 present case is barred by 28 U.S.C. § 2244 as a second or 8 successive petition. 9 Lindh v. It A federal court must dismiss a second or successive petition 10 that raises the same grounds as a prior petition. 11 § 2244(b)(1). 12 petition raising a new ground unless the petitioner can show that 13 1) the claim rests on a new, retroactive, constitutional right or 14 2) the factual basis of the claim was not previously discoverable 15 through due diligence, and the new facts establish by clear and 16 convincing evidence that but for the constitutional error, no 17 reasonable factfinder would have found the applicant guilty of 18 the underlying offense. 19 28 U.S.C. The Court must also dismiss a second or successive 28 U.S.C. § 2244(b)(2)(A,(B). However, it is not the district court that decides whether a 20 second or successive petition meets these requirements, which 21 allow a petitioner to file a second or successive petition. 22 Section 2244(b)(3)(A) provides, “Before a second or successive 23 application permitted by this section is filed in the district 24 court, the applicant shall move in the appropriate court of 25 appeals for an order authorizing the district court to consider 26 the application.” 27 from the Ninth Circuit before he or she can file a second or 28 successive petition in district court. In other words, a petitioner must obtain leave 6 See Felker v. Turpin, 518 1 U.S. 651, 656-657 (1996). 2 presented in a second or successive habeas corpus application 3 under section 2254 that was presented in a prior application 4 unless the Court of Appeals has given Petitioner leave to file 5 the petition. 6 characterized as jurisdictional. 7 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 8 Cir. 2001). 9 This Court must dismiss any claim 28 U.S.C. § 2244(b)(1). This limitation has been Burton v. Stewart, 549 U.S. Pursuant to Respondent’s request (Mot. 4 n.3), this Court 10 takes judicial notice of the docket and documents filed in 11 Petitioner’s previous habeas corpus case, Broussard v. Terhune, 12 no. 1:99-cv-05390-LJO-LJO, including the Report and 13 Recommendation re: Respondent’s Motion to Dismiss the Petition, 14 filed on October 12, 1999 (Doc. 15), the Court’s Order Ordering 15 Findings and Recommendations Vacated and Construing It as a 16 Proposed Order, filed on November 30, 1999 (Doc. 19), and the 17 Court’s Order Ordering the Motion to Dismiss Granted and the 18 Habeas Corpus Petition Dismissed, which was filed on November 30, 19 1999 (Doc. 20).1 20 has before it, the petition in the previous action (Lodged 21 Document [LD] 26) as well as the docket and significant orders. 22 In the previous proceeding, Petitioner challenged the same Further, Respondent has lodged, and the Court 23 judgment and conviction as that challenged in the present 24 petition – namely, his 1989 Kern County conviction and the 25 resulting sentence of four years to run consecutively to his life 26 27 28 1 The Court further notes that with respect to Petitioner’s ensuing appeal of the dismissal, the Ninth Circuit Court of Appeals denied the request for a certificate of appealability. (Doc. 27.) 7 1 term. 2 Dismiss the Petition [Doc. 15], 1.) 3 petition in that action was untimely and barred by the AEDPA’s 4 one-year statute of limitations. 5 (Report and Recommendation re: Respondent’s Motion to This Court ruled that the (Id. at 3-6; Docs. 19-20.) A claim is successive within the meaning of § 2244(b) if the 6 basic thrust or gravamen of the legal claim is the same, 7 regardless of whether the basic claim is supported by new and 8 different legal arguments; further, identical grounds may often 9 be proved by different factual allegations. 10 11 Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir. 1999). In the present petition, Petitioner claims that his 12 conviction and sentence were illegal, in excess of the trial 13 court’s statutory jurisdiction, and a miscarriage of justice due 14 to his actual innocence based on Cal. Pen. Code § 4501's 15 exclusion of life prisoners from its scope (Pet. 1-3); the 16 judgment violated his protection against double jeopardy because 17 of the inapplicability of the statute (Pet. 3-4); and Petitioner 18 was ill-advised to accept the plea by his trial counsel, who 19 later argued that Petitioner could not violate the statute as a 20 life prisoner (Pet. 4). 21 In the previous petition, Petitioner raised the same legal 22 claims, namely, that the statute defining the offense, Cal. Pen. 23 Code § 4501, excluded life prisoners, and thus Petitioner was 24 deprived of due process and unlawfully sentenced in excess of the 25 trial court’s jurisdiction (LD 26, 1-3, 6); the trial court 26 exceeded its jurisdiction in not permitting him to withdraw his 27 plea (LD 26, 3- 4); his plea bargain to plead to the charge was 28 unconstitutional, and his counsel was ineffective for failure to 8 1 file a certificate of probable cause and perfect an appeal from 2 the denial of his motion to withdraw the plea (LD 26, 5-6); and 3 his sentence violated his protection against double jeopardy (LD 4 26, 6). 5 Although there are slight differences in the articulation of 6 his claims, the Court concludes that claims in the two petitions 7 are the same with respect to their basic thrust or gravamen. 8 9 Generally, a habeas petition is second or successive only if it raises claims that were or could have been adjudicated on the 10 merits in an earlier petition. 11 1029 (9th Cir. 2009); Cooper v. Calderon, 274 F.3d 1270, 1273 12 (9th Cir. 2001). 13 district court either considered and rejected the claim, or 14 determined that the underlying claim would not be considered by a 15 federal court. 16 Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990)). McNabb v. Yates, 576 F.3d 1028, A disposition is “on the merits” if the McNabb v. Yates, 576 F.3d 1028, 1029 (citing 17 Here, the previous dismissal was for untimeliness. 18 dismissal of a federal habeas petition for untimeliness is a 19 determination “on the merits” for purposes of the rule against 20 successive petitions such that a further petition challenging the 21 same conviction is “second or successive” for purposes of 28 22 U.S.C. § 2244(b). 23 Cir. 2009). 24 incurable bar to federal review of the underlying claims. 25 1030. 26 A McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th This is because such a dismissal is a permanent and Id. at Here, Petitioner seeks to raise claims that this Court 27 previously determined would not be considered by a federal court. 28 Further, Petitioner has not received permission from the Ninth 9 1 Circuit to proceed with his petition, which presents second or 2 successive claims. 3 4 5 Accordingly, the petition must be dismissed for lack of subject-matter jurisdiction in this Court. Because this Court lacks jurisdiction over the subject 6 matter of this action, the Court need not consider Respondent’s 7 additional contention the petition is untimely. 8 Petitioner’s allegations and arguments concerning actual 9 innocence, and his motion to grant the writ, will not be 10 Likewise, considered. 11 IV. 12 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 13 appealability, an appeal may not be taken to the court of appeals 14 from the final order in a habeas proceeding in which the 15 detention complained of arises out of process issued by a state 16 court. 17 U.S. 322, 336 (2003). 18 only if the applicant makes a substantial showing of the denial 19 of a constitutional right. 20 petitioner must show that reasonable jurists could debate whether 21 the petition should have been resolved in a different manner or 22 that the issues presented were adequate to deserve encouragement 23 to proceed further. 24 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 25 certificate should issue if the Petitioner shows that jurists of 26 reason would find it debatable whether the petition states a 27 valid claim of the denial of a constitutional right and that 28 jurists of reason would find it debatable whether the district 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 10 A 1 court was correct in any procedural ruling. 2 529 U.S. 473, 483-84 (2000). 3 Slack v. McDaniel, In determining this issue, a court conducts an overview of 4 the claims in the habeas petition, generally assesses their 5 merits, and determines whether the resolution was debatable among 6 jurists of reason or wrong. 7 applicant to show more than an absence of frivolity or the 8 existence of mere good faith; however, it is not necessary for an 9 applicant to show that the appeal will succeed. 10 Id. It is necessary for an Miller-El v. Cockrell, 537 U.S. at 338. 11 A district court must issue or deny a certificate of 12 appealability when it enters a final order adverse to the 13 applicant. 14 Rule 11(a) of the Rules Governing Section 2254 Cases. It does not appear that reasonable jurists could debate 15 whether the petition should have been resolved in a different 16 manner. 17 denial of a constitutional right. 18 decline to issue a certificate of appealability. Petitioner has not made a substantial showing of the Accordingly, the Court will 19 V. 20 Accordingly, it is ORDERED that: 21 1. 22 23 Disposition The Clerk SUBSTITUTE Tim Virga, Acting Warden of the California State Prison, Sacramento, as Respondent; and 2. Petitioner’s “Traverse: Motion to grant Habeas Corpus 24 Due to a miscarriage of justice” and “ADDENDUM TO TRAVERSE: 25 MOTION TO GRANT WRIT UPON MISCARRIAGE OF JUSTICE EXCEPTION” 26 (Docs. 16, 20) are DEEMED to be an opposition to Respondent’s 27 motion to dismiss; and 28 3. Respondent’s request for judicial notice is GRANTED; and 11 1 2 4. Respondent’s motion to dismiss is GRANTED for lack of subject matter jurisdiction; and 3 5. The proceeding is DISMISSED; and 4 6. The Clerk is DIRECTED to close the action because this 5 order terminates it in its entirety; and 6 7 7. The Court DECLINES to issue a certificate of appealability. 8 9 10 IT IS SO ORDERED. Dated: ie14hj October 19, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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