(HC) Schmidt v. Evans, No. 1:2010cv00341 - Document 17 (E.D. Cal. 2011)
Court Description: ORDER GRANTING Respondent's 10 Motion to Dismiss the Petition; ORDER DISMISSING the Petition as Successive Pursuant to 28 U.S.C. 2244(b); DISMISSING Petitioner's 16 Motion for Evidentiary Hearing as Moot; DECLINING to Issue a Certificate of Appealability; ORDER DIRECTING the Clerk to Close the Action, signed by Magistrate Judge Sheila K. Oberto on 6/13/2011. CASE CLOSED. (Marrujo, C)
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(HC) Schmidt v. Evans Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 STEVEN L. SCHMIDT, ) ) ) ) ) ) ) ) ) ) ) ) 10 Petitioner, 11 12 13 14 v. M. EVANS, Warden, Respondent. 15 16 17 1:10-cv—00341-SKO-HC ORDER GRANTING RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 10, 1) ORDER DISMISSING THE PETITION AS SUCCESSIVE PURSUANT TO 28 U.S.C. § 2244(b) (Doc. 1), DISMISSING PETITIONER’S MOTION FOR EVIDENTIARY HEARING AS MOOT (Doc. 16), AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY ORDER DIRECTING THE CLERK TO CLOSE THE ACTION 18 19 Petitioner is a state prisoner proceeding pro se with a 20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 21 Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to 22 the jurisdiction of the United States Magistrate Judge to conduct 23 all further proceedings in the case, including the entry of final 24 judgment, by manifesting consent in signed writings filed by 25 Petitioner on March 8, 2010 (doc. 3), and on behalf of Respondent 26 on December 10, 2010 (doc. 9). 27 Respondent’s motion to dismiss the petition, which was filed on 28 January 24, 2011. Pending before the Court is Petitioner filed an opposition to the motion 1 Dockets.Justia.com 1 on February 11, 2011. 2 2011. Respondent filed a reply on February 18, 3 I. 4 A federal court is a court of limited jurisdiction which has Proceeding by a Motion to Dismiss 5 a continuing duty to determine its own subject matter 6 jurisdiction and to dismiss an action where it appears that the 7 Court lacks jurisdiction. 8 Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) (citing City of 9 Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); Billingsley v. 10 Fed. R. Civ. P. 12(h)(3); CSIBI v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). 11 Respondent has filed a motion to dismiss the petition on the 12 ground that this Court lacks subject matter jurisdiction over the 13 petition because it is successive and thus is barred by 28 U.S.C. 14 § 2244. 15 Rule 4 of the Rules Governing Section 2254 Cases in the 16 District Courts (Habeas Rules) allows a district court to dismiss 17 a petition if it “plainly appears from the face of the petition 18 and any exhibits annexed to it that the petitioner is not 19 entitled to relief in the district court....” 20 The Ninth Circuit has allowed respondents to file motions to 21 dismiss pursuant to Rule 4 instead of answers if the motion to 22 dismiss attacks the pleadings by claiming that the petitioner has 23 failed to exhaust state remedies or has violated the state’s 24 procedural rules. 25 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 26 a petition for failure to exhaust state remedies); White v. 27 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 28 review a motion to dismiss for state procedural default); Hillery See, e.g., O’Bremski v. Maass, 915 F.2d 418, 2 1 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 2 Thus, a respondent may file a motion to dismiss after the Court 3 orders the respondent to respond, and the Court should use Rule 4 4 standards to review a motion to dismiss filed before a formal 5 answer. 6 See, Hillery, 533 F. Supp. at 1194 & n.12. Here, Respondent’s motion to dismiss is based on lack of 7 subject matter jurisdiction. 8 procedural posture to a motion to dismiss for failure to exhaust 9 state remedies or for state procedural default. Respondent’s motion is similar in Further, 10 although the motion is opposed, the motion does not raise 11 material factual disputes. 12 a formal answer. 13 Finally, Respondent has not yet filed The Court therefore exercises its discretion to review 14 Respondent’s motion to dismiss pursuant to its authority under 15 Rule 4. 16 II. 17 Petitioner alleges that he is serving a sentence of fifty- Background 18 five (55) years to life imposed by the Stanislaus County Superior 19 Court upon Petitioner’s conviction on August 20, 1999, of 20 attempted burglary with enhancements for prior convictions. 21 (Pet. 1.) 22 it was unauthorized, illegal, and violated Petitioner’s right to 23 due process of law under the Fourteenth Amendment. 24 argues that judicial error violated the protection against double 25 jeopardy and his rights under the Equal Protection Clause, and 26 the ineffective assistance of his trial and appellate counsel 27 violated Petitioner’s Fifth and Fourteenth Amendment rights. 28 (Pet. 5-6.) Petitioner challenges his sentence on the ground that 3 He further 1 The Court may take judicial notice of court records. Fed. 2 R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 3 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 4 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). 5 The Court will take judicial notice of its own dockets and notes 6 that the present petition is not the first petition filed with 7 respect to the judgment pursuant to which Petitioner is detained. 8 9 On March 24, 2006, a habeas petition challenging Petitioner’s Stanislaus County conviction and sentence was denied 10 on the merits by this Court in Schmidt v. Scribner, 03-cv-6124- 11 AWI-DLB-HC. 12 merits and entered judgment for the Respondent. 13 24, 2; 25.) (Docs. 22, 24) The Court denied the petition on the (Docs. 22, 24; 14 III. Successive Petition 15 Because the petition was filed after April 24, 1996, the 16 effective date of the Antiterrorism and Effective Death Penalty 17 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 18 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 19 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 20 Lindh Under the AEDPA, a federal court must dismiss a second or 21 successive petition that raises the same grounds as a prior 22 petition. 23 second or successive petition raising a new ground unless the 24 petitioner can show that 1) the claim rests on a new, 25 retroactive, constitutional right or 2) the factual basis of the 26 claim was not previously discoverable through due diligence, and 27 the new facts establish by clear and convincing evidence that but 28 for the constitutional error, no reasonable factfinder would have 28 U.S.C. § 2244(b)(1). 4 The Court must also dismiss a 1 found the applicant guilty of the underlying offense. 2 § 2244(b)(2)(A)-(B). 3 28 U.S.C. However, it is not the district court that decides whether a 4 second or successive petition meets these requirements, which 5 allow a petitioner to file a second or successive petition. 6 Section 2244(b)(3)(A) provides, “Before a second or successive 7 application permitted by this section is filed in the district 8 court, the applicant shall move in the appropriate court of 9 appeals for an order authorizing the district court to consider 10 the application.” 11 from the Ninth Circuit before he or she can file a second or 12 successive petition in district court. 13 U.S. 651, 656-657 (1996). 14 presented in a second or successive habeas corpus application 15 under section 2254 that was presented in a prior application 16 unless the Court of Appeals has given Petitioner leave to file 17 the petition. 18 characterized as jurisdictional. 19 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 20 Cir. 2001). In other words, a petitioner must obtain leave See Felker v. Turpin, 518 This Court must dismiss any claim 28 U.S.C. § 2244(b)(1). This limitation has been Burton v. Stewart, 549 U.S. 21 A disposition is “on the merits” if the district court 22 either considered and rejected the claim, or determined that the 23 underlying claim would not be considered by a federal court. 24 McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing 25 Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990)). 26 Here, the first petition concerning the Stanislaus County 27 judgment was denied on the merits. 28 that he has obtained prior leave from the Ninth Circuit to file 5 Petitioner makes no showing 1 his successive petition attacking the conviction. 2 this court has no jurisdiction to consider Petitioner’s renewed 3 application for relief from that conviction under section 2254 4 and must dismiss the petition. 5 651, 656-57; Burton v. Stewart, 549 U.S. 147, 152; Cooper v. 6 Calderon, 274 F.3d 1270, 1274. 7 in bringing this petition for writ of habeas corpus, he must file 8 for leave to do so with the Ninth Circuit. 9 § 2244(b)(3). 10 Accordingly, See, Felker v. Turpin, 518 U.S. If Petitioner desires to proceed See 28 U.S.C. Petitioner's reliance on Hill v. State of Alaska, 297 F.3d 11 895 (9th Cir. 2002) does not aid him. 12 sought permission from the Court of Appeals to file a successive 13 petition to raise a claim concerning the calculation of a 14 mandatory parole release date that could not have been included 15 in earlier petitions challenging the same conviction and 16 sentence. 17 in the earlier petitions, the court permitted the parole claim to 18 proceed. 19 claim challenging the underlying conviction. 20 897-99. 21 In Hill, the petitioner Because the parole claim could not have been included However, it declined to grant permission to raise a Hill, 297 F.3d at Here, Petitioner challenges the same judgment that was the 22 subject of his earlier petitions. 23 the present challenges in an earlier petition. 24 concludes that the petition must be dismissed as successive. 25 Petitioner could have raised The Court Because the limitations of § 2244 are jurisdictional, the 26 Court will not address Respondent’s additional argument that the 27 petition should be dismissed because it was untimely. 28 in light of the absence of subject matter jurisdiction in this 6 Further, 1 Court, Petitioner’s motion for an evidentiary hearing filed on 2 March 3, 2011, will be dismissed as moot. 3 V. 4 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 5 appealability, an appeal may not be taken to the Court of Appeals 6 from the final order in a habeas proceeding in which the 7 detention complained of arises out of process issued by a state 8 court. 9 U.S. 322, 336 (2003). 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 10 only if the applicant makes a substantial showing of the denial 11 of a constitutional right. 12 standard, a petitioner must show that reasonable jurists could 13 debate whether the petition should have been resolved in a 14 different manner or that the issues presented were adequate to 15 deserve encouragement to proceed further. 16 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 17 (2000)). 18 jurists of reason would find it debatable whether the petition 19 states a valid claim of the denial of a constitutional right and 20 that jurists of reason would find it debatable whether the 21 district court was correct in any procedural ruling. 22 McDaniel, 529 U.S. 473, 483-84 (2000). 23 28 U.S.C. § 2253(c)(2). Under this Miller-El v. Cockrell, A certificate should issue if the Petitioner shows that Slack v. In determining this issue, a court conducts an overview of 24 the claims in the habeas petition, generally assesses their 25 merits, and determines whether the resolution was wrong or 26 debatable among jurists of reason. 27 U.S. at 336-37. 28 than an absence of frivolity or the existence of mere good faith; Miller-El v. Cockrell, 537 It is necessary for an applicant to show more 7 1 however, it is not necessary for an applicant to show that the 2 appeal will succeed. Id. at 338. 3 A district court must issue or deny a certificate of 4 appealability when it enters a final order adverse to the 5 applicant. 6 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, Petitioner has not demonstrated that jurists of reason 7 would find it debatable whether or not the petition states a 8 valid claim of the denial of a constitutional right. 9 has not made the substantial showing required for issuance of a 10 certificate of appealability. 11 12 Petitioner Therefore, the Court will decline to issue a certificate of appealability. 13 VI. Disposition 14 Accordingly, it is ORDERED that: 15 1) The petition for writ of habeas corpus is DISMISSED as 16 successive; and 17 18 2) Petitioner’s motion for an evidentiary hearing is DISMISSED as moot; and 19 20 3) The Court DECLINES to issue a certificate of appealability; and 21 4) The Clerk is DIRECTED to close this action. 22 23 IT IS SO ORDERED. 24 Dated: ie14hj June 13, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 25 26 27 28 8
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