(HC) James v. Hedgpeth, No. 1:2010cv01975 - Document 6 (E.D. Cal. 2011)
Court Description: FINDINGS And RECOMMENDATIONS To Dismiss Petition As Successive Pursuant To 28 U.S.C 2244(b) (Doc. 1 ) And To Decline To Issue A Certificate Of Appealability, Deadline For Objections: Thirty (30) Days, signed by Magistrate Judge Sheila K. Oberto on 1/3/2011. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 2/7/2011.(Fahrney, E)
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(HC) James v. Hedgpeth Doc. 6 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MICHAEL JAMES, ) ) ) ) ) ) ) ) ) ) ) ) 11 Petitioner, 12 13 14 15 v. A. HEDGPETH, Warden, Respondent. 16 1:10-cv—01975-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION AS SUCCESSIVE PURSUANT TO 28 U.S.C. § 2244(b) (Doc. 1) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 22 Rules 302 and 304. 23 204 pages, including exhibits, filed on October 21, 2010. The matter has been referred to the Pending before the Court is the petition of 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 Salinas Valley State Prison Background 24 (SVSP) serving a sentence of twenty-six (26) years to life 25 imposed in the Kern County Superior Court on May 29, 2002, for 26 conspiracy and attempted murder. 27 28 (Pet. 1, 7.) The present petition is not the first petition filed with respect to the judgment pursuant to which Petitioner is 2 1 incarcerated. 2 records. 3 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise Cascade 4 Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 5 699 (9th Cir. 1981). 6 own dockets. 7 The Court may take judicial notice of court Fed. R. Evid. 201(b); United States v. Bernal-Obeso, The Court will take judicial notice of its On September 4, 2009, a second amended habeas petition 8 challenging Petitioner’s 2002 conspiracy and attempt judgment was 9 denied by this Court on the merits in Michael James v. Darral 10 Adams, 1:07-cv-01110-JMD-HC. 11 proceeding reflects that a notice of appeal from this Court’s 12 judgment was filed on October 5, 2009 (Doc. 40), and the appeal 13 is presently pending. (Docs. 37, 38.) The docket of that 14 III. 15 Because the petition in the present case was filed after the 16 enactment of the Antiterrorism and Effective Death Penalty Act of 17 1996 (AEDPA), the AEDPA applies to the petition. 18 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 Successive Petition Lindh v. A federal court must dismiss a second or successive petition 21 that raises the same grounds as a prior petition. 22 § 2244(b)(1). 23 petition raising a new ground unless the petitioner can show that 24 1) the claim rests on a new, retroactive, constitutional right or 25 2) the factual basis of the claim was not previously discoverable 26 through due diligence, and the new facts establish by clear and 27 convincing evidence that but for the constitutional error, no 28 reasonable factfinder would have found the applicant guilty of 28 U.S.C. The Court must also dismiss a second or successive 3 1 2 the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a 3 second or successive petition meets these requirements, which 4 allow a petitioner to file a second or successive petition. 5 Section 2244(b)(3)(A) provides, “Before a second or successive 6 application permitted by this section is filed in the district 7 court, the applicant shall move in the appropriate court of 8 appeals for an order authorizing the district court to consider 9 the application.” In other words, a petitioner must obtain leave 10 from the Ninth Circuit before he or she can file a second or 11 successive petition in district court. 12 U.S. 651, 656-657 (1996). 13 presented in a second or successive habeas corpus application 14 under section 2254 that was presented in a prior application 15 unless the Court of Appeals has given Petitioner leave to file 16 the petition. 17 characterized as jurisdictional. 18 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 19 Cir. 2001). 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. 20 A disposition is “on the merits” if the district court 21 either considered and rejected the claim, or determined that the 22 underlying claim would not be considered by a federal court. 23 McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing 24 Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990)). 25 is successive within the meaning of § 2244(b) if the basic thrust 26 or gravamen of the legal claim is the same, regardless of whether 27 the basic claim is supported by new and different legal 28 arguments. A claim Further, identical grounds may often be proved by 4 1 different factual allegations. 2 744, 746 (9th Cir. 1999). 3 4 5 Babbitt v. Woodford, 177 F.3d Here, the first petition concerning the Kings County judgment was denied on the merits. The Court has considered the pendency of an appeal from the 6 judgment rendered by this Court on the first petition. 7 established that if a new petition is filed when a previous 8 habeas petition is still pending before the district court 9 without a decision having been rendered, then the new petition 10 should be construed as a motion to amend the pending petition. 11 Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). 12 Woods holding will not be extended to a situation where the 13 district court has ruled on the initial petition, and proceedings 14 have begun in the Court of Appeals. 15 780, 782-83 & n.1 (9th Cir. 2009), cert. denied, -- U.S. --, 130 16 S.Ct. 364, 175 L.Ed.2d 50 (2009). 17 the Court is thus considered a successive petition because the 18 district court entered judgment and denied the first petition on 19 the merits, and the appeal is pending in the Ninth Circuit. 20 It is However, the Beaty v. Schriro, 554 F.3d The petition presently before Id. Petitioner makes no showing that he has obtained prior leave 21 from the Ninth Circuit to file his successive petition attacking 22 the conviction. 23 consider Petitioner’s renewed application for relief from that 24 conviction under section 2254 and must dismiss the petition. 25 See, Felker v. Turpin, 518 U.S. 651, 656-57; Burton v. Stewart, 26 549 U.S. 147, 152; Cooper v. Calderon, 274 F.3d 1270, 1274. 27 Petitioner desires to proceed in bringing this petition for writ 28 of habeas corpus, he must file for leave to do so with the Ninth Accordingly, this court has no jurisdiction to 5 If 1 Circuit. 2 IV. 3 Unless a circuit justice or judge issues a certificate of See 28 U.S.C. § 2244(b)(3). Certificate of Appealability 4 appealability, an appeal may not be taken to the Court of Appeals 5 from the final order in a habeas proceeding in which the 6 detention complained of arises out of process issued by a state 7 court. 8 U.S. 322, 336 (2003). 9 only if the applicant makes a substantial showing of the denial 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 10 of a constitutional right. 11 standard, a petitioner must show that reasonable jurists could 12 debate whether the petition should have been resolved in a 13 different manner or that the issues presented were adequate to 14 deserve encouragement to proceed further. 15 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 16 (2000)). 17 jurists of reason would find it debatable whether the petition 18 states a valid claim of the denial of a constitutional right and 19 that jurists of reason would find it debatable whether the 20 district court was correct in any procedural ruling. 21 McDaniel, 529 U.S. 473, 483-84 (2000). 22 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 23 the claims in the habeas petition, generally assesses their 24 merits, and determines whether the resolution was wrong or 25 debatable among jurists of reason. 26 U.S. at 336-37. 27 than an absence of frivolity or the existence of mere good faith; 28 however, it is not necessary for an applicant to show that the Miller-El v. Cockrell, 537 It is necessary for an applicant to show more 6 1 appeal will succeed. Id. at 338. 2 A district court must issue or deny a certificate of 3 appealability when it enters a final order adverse to the 4 applicant. 5 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, Petitioner has not demonstrated that jurists of reason 6 would find it debatable whether or not the petition states a 7 valid claim of the denial of a constitutional right. 8 has not made the substantial showing required for issuance of a 9 certificate of appealability. 10 V. 11 Accordingly, it is RECOMMENDED that: 12 1) The petition be DISMISSED as successive; and 13 Petitioner 2) The Court DECLINE to issue a certificate of 14 15 16 Recommendation appealability; and 3) The Clerk be DIRECTED to close this action because the dismissal will terminate the action. 17 These findings and recommendations are submitted to the 18 United States District Court Judge assigned to the case, pursuant 19 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 20 the Local Rules of Practice for the United States District Court, 21 Eastern District of California. 22 being served with a copy, any party may file written objections 23 with the Court and serve a copy on all parties. 24 should be captioned “Objections to Magistrate Judge’s Findings 25 and Recommendations.” 26 and filed within fourteen (14) days (plus three (3) days if 27 served by mail) after service of the objections. 28 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 7 The Court will 1 636 (b)(1)(C). 2 objections within the specified time may waive the right to 3 appeal the District Court’s order. 4 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 5 6 IT IS SO ORDERED. 7 Dated: ie14hj January 3, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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