(TEMP)(HC) Belton v. Davies, No. 2:2015cv00883 - Document 21 (E.D. Cal. 2016)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/11/2016 GRANTING respondent's 9 request for judicial notice. IT IS RECOMMENDED that respondent's 9 motion to dismiss be granted; petitioner' s application for writ of habeas corpus be dismissed without prejudice to its refiling with a copy of an order from the Ninth Circuit Court of Appeals authorizing petitioner to file a second or successive petition; and this action be closed. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VERNON LEE BELTON, JR., 12 13 14 15 No. 2:15-cv-0883 KJM CKD P (TEMP) Petitioner, v. ORDER AND WARDEN DAVIES, FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s motion to dismiss 19 the petition as second or successive or, in the alternative, as untimely. Petitioner has filed an 20 opposition to the motion, and respondent has filed a reply. 21 BACKGROUND 22 In his petition, petitioner challenges a judgment of conviction entered against him in 2009 23 by the Sacramento County Superior Court for first-degree robbery, first-degree burglary, felony 24 assault, attempted sodomy with force, and two counts of felony rape. The trial court sentenced 25 petitioner to an indeterminate term of forty-six years and four months to life in state prison. (Pet. 26 at 2-3; Resp’t’s Lodged Docs. 1-2.) 27 28 On July 30, 2011, the California Court of Appeal for the Third Appellate District affirmed the judgment of conviction. On October 12, 2011, the California Supreme Court denied review. 1 1 Petitioner unsuccessfully challenged his judgment of conviction in five post-conviction 2 proceedings in state court. (Resp’t’s Lodged Docs. 2-14.) 3 On December 19, 2011, petitioner filed a federal petition for writ of habeas corpus 4 pursuant to 28 U.S.C. § 2254 in this court challenging his 2009 judgment of conviction. See 5 Belton v. Gipson, No. 2:11-cv-3365 CKD P.1 On March 20, 2012, respondent filed an answer to 6 the petition, and on May 15, 2012, petitioner filed a traverse. Id. (Doc. Nos. 13 & 24) On March 7 26, 2013, the undersigned denied petitioner’s habeas corpus claims on the merits and closed the 8 case. Id. (Doc. No. 29) The court entered judgment on the same day. Id. (Doc. No. 30) On 9 June 6, 2013, the undersigned denied petitioner’s request for a certificate of appealability. Id. 10 (Doc. No. 37) On August 11, 2014, the United States Court of Appeals for the Ninth Circuit also 11 denied petitioner’s request for a certificate of appealability. Id. (Doc. No. 44) 12 On April 21, 2015, petitioner commenced this action by filing the pending petition for 13 writ of habeas corpus. As noted above, he challenges his 2009 judgment of conviction once 14 more. In this petition, petitioner asserts claims for ineffective assistance of trial counsel and 15 ineffective assistance of appellate counsel. (Pet. at 5 & Attachs.) 16 ANALYSIS “A claim presented in a second or successive habeas corpus application under section 17 18 2254 that was not presented in a prior application shall be dismissed. . . .” 28 U.S.C. 19 § 2244(b)(2). This is the case unless, 20 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or 21 22 (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 23 24 25 26 27 28 1 Respondent has requested that the court take judicial notice of petitioner’s prior federal habeas action. A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). Accordingly, the court will grant respondent’s request. 2 1 28 U.S.C. § 2244(b)(2). Before filing a second or successive petition in the district court, “the 2 applicant shall move in the appropriate court of appeals for an order authorizing the district court 3 to consider the application.” 28 U.S.C. § 2244(b)(3)(A). As detailed above, this court’s own records reveal that petitioner previously filed a 4 5 petition for writ of habeas corpus in this court attacking the same state court conviction and 6 sentence that he now seeks to challenge in this federal habeas proceeding. See Belton v. Gipson, 7 No. 2:11-cv-3365 CKD P. In that prior habeas action, this court addressed petitioner’s claims on 8 the merits and denied his petition for writ of habeas corpus. Id. As such, petitioner was required 9 to obtain authorization from the Ninth Circuit before filing his pending petition in this court. 10 Petitioner has not obtained an order from the Ninth Circuit authorizing the district court to 11 consider a second or successive petition as required to proceed with this habeas action, so this 12 court lacks jurisdiction to entertain the now pending petition. See Burton v. Stewart, 549 U.S. 13 147, 152 (2007). Accordingly, the undersigned will recommend that respondent’s motion to 14 dismiss be granted and the instant petition be dismissed without prejudice to its refiling with a 15 copy of an order from the Ninth Circuit authorizing petitioner to file a second or successive 16 federal habeas petition.2 17 CONCLUSION IT IS HEREBY ORDERED that respondent’s request for judicial notice (Doc. No. 9) is 18 19 granted. 20 IT IS HEREBY RECOMMENDED that: 21 1. Respondent’s motion to dismiss (Doc. No. 9) be granted; 22 2. Petitioner’s application for a writ of habeas corpus be dismissed without prejudice to 23 its refiling with a copy of an order from the Ninth Circuit Court of Appeals authorizing petitioner 24 to file a second or successive petition; and 25 3. This action be closed. 26 27 28 2 In light of the findings and recommendations herein, recommending dismissal of the pending petition as second or successive, the court need not reach respondent’s alternative argument that the petition is also time-barred by the applicable statute of limitations. 3 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 3 after being served with these findings and recommendations, any party may file written 4 objections with the court and serve a copy on all parties. Such a document should be captioned 5 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 6 objections shall be filed and served within fourteen days after service of the objections. The 7 parties are advised that failure to file objections within the specified time may waive the right to 8 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 In any objections he elects to file, petitioner may address whether a certificate of 10 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 12 certificate of appealability when it enters a final order adverse to the applicant). 13 Dated: January 11, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 14 15 16 17 ec belt0883.157 18 19 20 21 22 23 24 25 26 27 28 4
]]>
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.
