(HC) Ward v. Evans, No. 1:2010cv00633 - Document 23 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sheila K. Oberto on 1/3/2011 recommending that 4 Petition for Writ of Habeas Corpus be DISMISSED as successive. Referred to Judge Oliver W. Wanger; Objections to F&R due by 2/7/2011.(Lundstrom, T)
Download PDF
<![CDATA[
(HC) Ward v. Evans Doc. 23 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 CRAIG ALLEN WARD, 11 Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) 12 v. 13 ACTING WARDEN M. C. EVANS, 14 Respondent. 15 1:10-cv—0633-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b) (Doc. 4) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS 16 17 Petitioner is a state prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 The matter was referred to the Magistrate Judge pursuant to 28 20 U.S.C. § 636(b) and Local Rules 302 and 304. 21 Court is the petition, which was filed on February 25, 2010, in 22 the United States District Court for the Northern District of 23 California and transferred to this Court on April 5, 2010. Pending before the 24 I. Screening the Petition 25 Rule 4 of the Rules Governing § 2254 Cases in the United 26 States District Courts (Habeas Rules) requires the Court to make 27 a preliminary review of each petition for writ of habeas corpus. 28 The Court must summarily dismiss a petition "[i]f it plainly 1 Dockets.Justia.com 1 appears from the petition and any attached exhibits that the 2 petitioner is not entitled to relief in the district court....” 3 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 4 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 5 1990). 6 grounds of relief available to the Petitioner; 2) state the facts 7 supporting each ground; and 3) state the relief requested. 8 Notice pleading is not sufficient; rather, the petition must 9 state facts that point to a real possibility of constitutional Habeas Rule 2(c) requires that a petition 1) specify all 10 error. 11 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 12 Allison, 431 U.S. 63, 75 n.7 (1977)). 13 that are vague, conclusory, or palpably incredible are subject to 14 summary dismissal. 15 Cir. 1990). 16 Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 17 corpus either on its own motion under Habeas Rule 4, pursuant to 18 the respondent's motion to dismiss, or after an answer to the 19 petition has been filed. 20 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 21 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 22 II. 23 Petitioner is an inmate of Folsom State Prison who was Background 24 sentenced to twenty-six (26) years to life in the Kern County 25 Superior Court in 1995 for receiving stolen property with prior 26 convictions in violation of Cal. Pen. Code §§ 496, 667.5, and 27 667. 28 (Pet. 2.) The present petition is not the first petition filed with 2 1 respect to the judgment pursuant to which Petitioner is detained. 2 The Court may take judicial notice of court records. 3 Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 4 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 5 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). 6 The Court will take judicial notice of its own dockets. 7 Fed. R. On June 22, 1999, a habeas petition challenging Petitioner’s 8 Kern County conviction and sentence was denied on the merits by 9 this Court in Craig Allen Ward v. Gail Lewis, 1:98-cv-5355-AWI- 10 SMS-P. (Docs. 18, 30, 31.) 11 Further, additional dockets reflect that Petitioner filed 12 other petitions addressing his Kern County sentence which were 13 dismissed as successive. 14 cv-05984-OWW-HGB-P, docs. 14, 16, 18; Craig Allen Ward v. M.C. 15 Kramer, 1:06-cv-01738-OWW-LJO-HC, docs. 7, 10, 11.) (Craig Allen Ward v. Gail Lewis, 1:98- 16 III. Successive Petition 17 Because the petition in the present case was filed after the 18 enactment of the Antiterrorism and Effective Death Penalty Act of 19 1996 (AEDPA), the AEDPA applies to the petition. 20 Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 21 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 22 Lindh v. A federal court must dismiss a second or successive petition 23 that raises the same grounds as a prior petition. 24 § 2244(b)(1). 25 petition raising a new ground unless the petitioner can show that 26 1) the claim rests on a new, retroactive, constitutional right or 27 2) the factual basis of the claim was not previously discoverable 28 through due diligence, and the new facts establish by clear and 28 U.S.C. The Court must also dismiss a second or successive 3 1 convincing evidence that but for the constitutional error, no 2 reasonable factfinder would have found the applicant guilty of 3 the underlying offense. 4 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a 5 second or successive petition meets these requirements, which 6 allow a petitioner to file a second or successive petition. 7 Section 2244(b)(3)(A) provides, “Before a second or successive 8 application permitted by this section is filed in the district 9 court, the applicant shall move in the appropriate court of 10 appeals for an order authorizing the district court to consider 11 the application.” 12 from the Ninth Circuit before he or she can file a second or 13 successive petition in district court. 14 U.S. 651, 656-657 (1996). 15 second or successive habeas corpus application under section 2254 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). 21 In other words, a petitioner must obtain leave See Felker v. Turpin, 518 This Court must dismiss claims in a 28 U.S.C. § 2244(b)(1). This limitation has been Burton v. Stewart, 549 U.S. A disposition of a first petition is “on the merits” if the 22 district court either considered and rejected the claim, or 23 determined that the underlying claim would not be considered by a 24 federal court. 25 2009) (citing Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 26 1990)). 27 28 McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. Here, the first petition concerning the Kern County judgment was denied on the merits. Petitioner makes no showing that he 4 1 has obtained prior leave from the Ninth Circuit to file his 2 successive petition attacking the conviction. 3 Court has no jurisdiction to consider Petitioner's renewed 4 application for relief from that conviction under Section 2254 5 and must dismiss the petition. 6 651, 656-657; Burton v. Stewart, 549 U.S. 147, 152; Cooper v. 7 Calderon, 274 F.3d 1270, 1274. 8 in bringing this petition for writ of habeas corpus, he must file 9 for leave to do so with the Ninth Circuit. 10 Accordingly, this See Felker v. Turpin, 518 U.S. If Petitioner desires to proceed See 28 U.S.C. § 2244 (b)(3). 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 standard, a petitioner must show that reasonable jurists could 21 debate whether the petition should have been resolved in a 22 different manner or that the issues presented were adequate to 23 deserve encouragement to proceed further. 24 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 25 (2000)). 26 jurists of reason would find it debatable whether the petition 27 states a valid claim of the denial of a constitutional right and 28 that jurists of reason would find it debatable whether the 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 28 U.S.C. § 2253(c)(2). Under this Miller-El v. Cockrell, A certificate should issue if the Petitioner shows that 5 1 district court was correct in any procedural ruling. 2 McDaniel, 529 U.S. 473, 483-84 (2000). 3 Slack v. 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 wrong or 6 debatable among jurists of reason. 7 U.S. at 336-37. 8 than an absence of frivolity or the existence of mere good faith; 9 however, it is not necessary for an applicant to show that the 10 Miller-El v. Cockrell, 537 It is necessary for an applicant to show more appeal will succeed. Id. 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. Here, Petitioner has not demonstrated that jurists of reason 15 would find it debatable whether or not the petition states a 16 valid claim of the denial of a constitutional right. 17 has not made the substantial showing required for issuance of a 18 certificate of appealability. 19 V. Recommendation 20 Accordingly, it is RECOMMENDED that: 21 1) The petition be DISMISSED as successive; and 22 Petitioner 2) The Court DECLINE to issue a certificate of 23 24 25 appealability; and 3) The Clerk close this action because the dismissal will terminate the action. 26 These findings and recommendations are submitted to the 27 United States District Court Judge assigned to the case, pursuant 28 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 6 1 the Local Rules of Practice for the United States District Court, 2 Eastern District of California. 3 being served with a copy, any party may file written objections 4 with the Court and serve a copy on all parties. 5 should be captioned “Objections to Magistrate Judge’s Findings 6 and Recommendations.” 7 and filed within fourteen (14) days (plus three (3) days if 8 served by mail) after service of the objections. 9 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § Within thirty (30) days after Such a document Replies to the objections shall be served The Court will 10 636 (b)(1)(C). 11 objections within the specified time may waive the right to 12 appeal the District Court’s order. 13 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 14 15 IT IS SO ORDERED. 16 Dated: ie14hj January 3, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
