-CKD (HC) White v. Dickinson, No. 2:2009cv00790 - Document 34 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 08/24/11 ORDERING that petitioner's 32 Motion For Admonishment is DENIED and RECOMMENDING that the 27 Motion to Dismiss be granted and this action be dismissed w/o prejudice. Objections to these F&Rs due w/i 21 days; referred to Judge Lawrence K. Karton. (Benson, A.)
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-CKD (HC) White v. Dickinson Doc. 34 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DAVID LEE WHITE, 11 Petitioner, 12 vs. 13 No. CIV S-09-0790-LKK CKD P K. DICKINSON, 14 Respondent. 15 16 ORDER & FINDINGS AND RECOMMENDATIONS / I. Introduction 17 Petitioner is a state prisoner proceeding pro se with an application for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. In the operative first amended petition, petitioner 19 challenges his 1999 conviction for first degree burglary with several prior convictions, for which 20 petitioner was sentenced to a total term of 30 years to life in state prison. (Doc. No. 24; see Lod. 21 Doc. 1.) Before the court is respondent’s January 14, 2011 motion to dismiss the petition as 22 successive under 28 U.S.C. § 2244(b) (2). Respondent also seeks dismissal on the alternative 23 grounds that the petition is barred by the statute of limitations and contains unexhausted claims. 24 Petitioner filed an opposition to the motion on February 9, 2011, and respondent filed a reply on 25 February 24, 2011. 26 //// 1 Dockets.Justia.com 1 II. Successive Petition 2 The court’s records reveal that petitioner has previously filed an application for a 3 writ of habeas corpus attacking the 1999 conviction and sentence challenged in this case. White 4 v. Lewis, et al., CIV S-02-1125 GEB KJM P (hereinafter “White I”)1; see also Lod. Docs. 22-26. 5 The previous application was filed on May 22, 2002, and was denied on the merits on August 18, 6 2005. (White I, Doc. Nos. 1, 49.) On December 27, 2005, the United States Court of Appeals 7 for the Ninth Circuit declined to issue a certificate of appealability. (Id., Doc. No. 54.) 8 9 Before petitioner can proceed with the instant application, he must move in the United States Court of Appeals for the Ninth Circuit for an order authorizing the district court to 10 consider the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be 11 dismissed without prejudice to its refiling upon obtaining authorization from the United States 12 Court of Appeals for the Ninth Circuit. 13 III. Alternative Grounds for Dismissal 14 Because this action must be dismissed as successive, the court need not reach 15 respondent’s arguments that the instant action is barred by the statute of limitations and contains 16 unexhausted claims. 17 V. Petitioner’s Motion 18 On August 16, 2011, petitioner filed a motion requesting that respondent be 19 sanctioned for failing to produce superior court documents from the 1999 proceedings in 20 plaintiff’s criminal case. Because respondent has lodged all documents necessary to support the 21 motion to dismiss on procedural grounds, petitioner’s motion will be denied. 22 //// 23 //// 24 1 25 26 A court may take judicial notice of court records. See, e.g., Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n. 2 (9th Cir. 2002) (“[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue[.]”) (internal quotation omitted). 2 1 VI. Conclusion 2 3 Accordingly, IT IS HEREBY ORDERED that petitioner’s August 16, 2011 motion for admonishment (Doc. No. 32) is denied. 4 5 IT IS HEREBY RECOMMENDED THAT respondent’s January 14, 2011 motion to dismiss (Doc. No. 27) be granted, and this action be dismissed without prejudice. 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 8 one days after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 11 shall be served and filed within fourteen days after service of the objections. The parties are 12 advised that failure to file objections within the specified time may waive the right to appeal the 13 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 Dated: August 24, 2011 15 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 16 17 18 19 2 whit0790.mtd 20 21 22 23 24 25 26 3
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