-SKO (HC) Webb v. Martel, No. 1:2011cv00260 - Document 9 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition as Successive, to Dismiss Petitioner's 4 Motion for Reconsideration as Moot, and to Decline to Issue a Certificate of Appealability signed by Magistrate Judge Sheila K. Oberto on 2/23/2011. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 3/29/2011. (Sant Agata, S)
Download PDF
<![CDATA[
-SKO (HC) Webb v. Martel Doc. 9 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GARY DEAN WEBB, 11 Petitioner, 12 13 14 v. WARDEN MARTEL, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—00260-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION AS SUCCESSIVE PURSUANT TO 28 U.S.C. § 2244(b) (Doc. 1), TO DISMISS PETITIONER’S MOTION FOR RECONSIDERATION AS MOOT (Doc. 4), AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: 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 which was filed on February 15, 2011. The matter has been referred to the Pending before the Court is the petition, 24 I. 25 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 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 the Mule Creek State Prison who Background 24 is serving a sentence of twenty-five (25) years to life for a 25 conviction of forgery sustained on January 22, 1998, in the Kings 26 County Superior Court. 27 pursuant to Cal. Pen. code § 667(e) for prior convictions that 28 were apparently sustained in 1984 in Kern County. (Pet. 1.) 2 The sentence was enhanced (Pet. 4.) 1 Petitioner raises the following claims: 2 used to enhance his 1998 sentence were actually a single prior 3 conviction pursuant to Petitioner’s plea agreement in the 1984 4 case; 2) the Court should accept new evidence concerning the 5 prior convictions that was not available on June 1, 2007; 6 3) Petitioner was deprived of the benefit of his 1984 plea 7 agreement; and 4) Petitioner’s counsel in the 1998 case was 8 ineffective in failing to investigate Petitioner’s criminal 9 history and in advising Petitioner to admit a “strike” that he 10 11 did not have. 1) the prior convictions (Pet. 4-6.) The present petition is not the first petition filed with 12 respect to the judgment pursuant to which Petitioner is detained. 13 Petitioner admits that this Court was the last court to hear his 14 issue. 15 evidence that was not discoverable through the exercise of due 16 diligence. 17 (Pet. 8.) However, he argues that he has discovered new (Pet. 12.) The Court may take judicial notice of court records. Fed. 18 R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 19 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 20 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). 21 The Court will take judicial notice of its own dockets. 22 On November 27, 2001, a habeas petition challenging 23 Petitioner’s Kings County conviction and sentence was denied on 24 the merits by this Court in Gary Dean Webb v. J. McGrath, no. CIV 25 F-00-7059 HGB P. 26 judgment for the Respondent. (Docs. 21, 1-11; 22.) The Court entered (Doc. 22.) 27 III. 28 Because the petition was filed after April 24, 1996, the Successive Petition 3 1 effective date of the Antiterrorism and Effective Death Penalty 2 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 3 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 4 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 5 Lindh Under the AEDPA, a federal court must dismiss a second or 6 successive petition that raises the same grounds as a prior 7 petition. 8 second or successive petition raising a new ground unless the 9 petitioner can show that 1) the claim rests on a new, 28 U.S.C. § 2244(b)(1). The Court must also dismiss a 10 retroactive, constitutional right or 2) the factual basis of the 11 claim was not previously discoverable through due diligence, and 12 the new facts establish by clear and convincing evidence that but 13 for the constitutional error, no reasonable factfinder would have 14 found the applicant guilty of the underlying offense. 15 § 2244(b)(2)(A)-(B). 16 28 U.S.C. However, it is not the district court that decides whether a 17 second or successive petition meets these requirements, which 18 allow a petitioner to file a second or successive petition. 19 Section 2244(b)(3)(A) provides, “Before a second or successive 20 application permitted by this section is filed in the district 21 court, the applicant shall move in the appropriate court of 22 appeals for an order authorizing the district court to consider 23 the application.” 24 from the Ninth Circuit before he or she can file a second or 25 successive petition in district court. 26 U.S. 651, 656-657 (1996). 27 presented in a second or successive habeas corpus application 28 under section 2254 that was presented in a prior application In other words, a petitioner must obtain leave See Felker v. Turpin, 518 This Court must dismiss any claim 4 1 unless the Court of Appeals has given Petitioner leave to file 2 the petition. 3 characterized as jurisdictional. 4 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 5 Cir. 2001). 28 U.S.C. § 2244(b)(1). This limitation has been Burton v. Stewart, 549 U.S. 6 A disposition is “on the merits” if the district court 7 either considered and rejected the claim, or determined that the 8 underlying claim would not be considered by a federal court. 9 McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing 10 11 Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990)). Here, the first petition concerning the Kings County 12 judgment was denied on the merits. 13 that he has obtained prior leave from the Ninth Circuit to file 14 his successive petition attacking the conviction. 15 this court has no jurisdiction to consider Petitioner’s renewed 16 application for relief from that conviction under section 2254 17 and must dismiss the petition. 18 651, 656-57; Burton v. Stewart, 549 U.S. 147, 152; Cooper v. 19 Calderon, 274 F.3d 1270, 1274. 20 in bringing this petition for writ of habeas corpus, he must file 21 for leave to do so with the Ninth Circuit. 22 2244(b)(3). 23 24 Petitioner makes no showing That being so, See, Felker v. Turpin, 518 U.S. If Petitioner desires to proceed See 28 U.S.C. § Accordingly, it will be recommended that the petition be dismissed. 25 IV. 26 On February 15, 2011, Petitioner filed a motion for 27 reconsideration in the present proceeding, in which Petitioner 28 seeks to have this Court reconsider the merits of his claims Motion for Reconsideration 5 1 2 concerning his Kings County conviction and sentence. (Doc. 4.) In view of the absence of jurisdiction over the petition, it 3 will be recommended that the motion for reconsideration be 4 dismissed as moot. 5 V. 6 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 7 appealability, an appeal may not be taken to the Court of Appeals 8 from the final order in a habeas proceeding in which the 9 detention complained of arises out of process issued by a state 10 court. 11 U.S. 322, 336 (2003). 12 only if the applicant makes a substantial showing of the denial 13 of a constitutional right. 14 standard, a petitioner must show that reasonable jurists could 15 debate whether the petition should have been resolved in a 16 different manner or that the issues presented were adequate to 17 deserve encouragement to proceed further. 18 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 19 (2000)). 20 jurists of reason would find it debatable whether the petition 21 states a valid claim of the denial of a constitutional right and 22 that jurists of reason would find it debatable whether the 23 district court was correct in any procedural ruling. 24 McDaniel, 529 U.S. 473, 483-84 (2000). 25 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 Slack v. In determining this issue, a court conducts an overview of 26 the claims in the habeas petition, generally assesses their 27 merits, and determines whether the resolution was wrong or 28 debatable among jurists of reason. 6 Miller-El v. Cockrell, 537 1 U.S. at 336-37. 2 than an absence of frivolity or the existence of mere good faith; 3 however, it is not necessary for an applicant to show that the 4 appeal will succeed. It is necessary for an applicant to show more Id. at 338. 5 A district court must issue or deny a certificate of 6 appealability when it enters a final order adverse to the 7 applicant. 8 9 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, Petitioner has not demonstrated that jurists of reason would find it debatable whether or not the petition states a 10 valid claim of the denial of a constitutional right. 11 has not made the substantial showing required for issuance of a 12 certificate of appealability. 13 that the Court decline to issue a certificate of appealability. Petitioner It will, therefore, be recommended 14 VI. 15 Accordingly, it is RECOMMENDED that: 16 1) The petition be DISMISSED as successive; and 17 2) Petitioner’s motion for reconsideration be DISMISSED as 18 19 20 21 22 Recommendations moot; and 3) The Court DECLINE to issue a certificate of appealability; and 3) The Clerk be DIRECTED to close this action because dismissal will terminate the action. 23 These findings and recommendations are submitted to the 24 United States District Court Judge assigned to the case, pursuant 25 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 26 the Local Rules of Practice for the United States District Court, 27 Eastern District of California. 28 being served with a copy, any party may file written objections Within thirty (30) days after 7 1 with the Court and serve a copy on all parties. 2 should be captioned “Objections to Magistrate Judge’s Findings 3 and Recommendations.” 4 and filed within fourteen (14) days (plus three (3) days if 5 served by mail) after service of the objections. 6 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 7 636 (b)(1)(C). 8 objections within the specified time may waive the right to 9 appeal the District Court’s order. 10 Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 12 IT IS SO ORDERED. 13 Dated: ie14hj February 23, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
]]>
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.
