(HC) Mimms v. Adams, No. 1:2009cv01698 - Document 11 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Sheila K. Oberto on 7/14/10: Recommending that the Petition be DISMISSED as successive; The Court DISREGARD Petitioner's Motion for Summary Judgment; The Court DECLINE to issue a certifica te of appealability; and The Clerk close this action because the dismissal will terminate the action; 1 Petition for Writ of Habeas Corpus filed by Demond Mimms, 7 MOTION for SUMMARY JUDGMENT filed by Demond Mimms referred to Judge Wanger; Objections to F&R due by 8/18/2010, Reply due 14 days (+3 days if served by mail) after service of the objections. (Hellings, J)
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(HC) Mimms v. Adams Doc. 11 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 DEMOND MIMMS, 10 Petitioner, 11 v. 12 DARRYL ADAMS, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—01698-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS AS A SUCCESSIVE PETITION (Doc. 1), TO DISREGARD MOTIONS (Docs. 7, 8, 9), AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS 15 16 Petitioner is a state prisoner proceeding pro se and in 17 forma pauperis with a petition for writ of habeas corpus pursuant 18 to 28 U.S.C. § 2254. 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 20 Rules 302 and 304. 21 which was filed on September 28, 2009. The matter has been referred to the Pending before the Court is the petition, 22 I. 23 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 24 States District Courts (Habeas Rules) requires the Court to make 25 a preliminary review of each petition for writ of habeas corpus. 26 The Court must summarily dismiss a petition "[i]f it plainly 27 appears from the petition and any attached exhibits that the 28 petitioner is not entitled to relief in the district court....” 1 Dockets.Justia.com 1 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 2 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 3 1990). 4 grounds of relief available to the Petitioner; 2) state the facts 5 supporting each ground; and 3) state the relief requested. 6 Notice pleading is not sufficient; rather, the petition must 7 state facts that point to a real possibility of constitutional 8 error. 9 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Habeas Rule 2(c) requires that a petition 1) specify all Rule 4, Advisory Committee Notes, 1976 Adoption; 10 Allison, 431 U.S. 63, 75 n. 7 (1977)). 11 that are vague, conclusory, or palpably incredible are subject to 12 summary dismissal. 13 Cir. 1990). 14 Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 15 corpus either on its own motion under Habeas Rule 4, pursuant to 16 the respondent's motion to dismiss, or after an answer to the 17 petition has been filed. 18 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 19 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 20 II. 21 In the petition, Petitioner, who was sentenced to ten (10) 22 years in prison for convictions of battery of a fellow prisoner 23 and gassing, challenges state prison officials’ having unlawfully 24 extended his maximum term of imprisonment by altering the date of 25 his release or parole beginning on or about April 27, 2007. 26 (Pet. 2.) 27 28 Background The present petition is the second petition filed with respect to this claim. The Court may take judicial notice of 2 1 court records. 2 Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise 3 Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff’d, 4 645 F.2d 699 (9th Cir. 1981). 5 dockets and files shows that Petitioner has previously sought 6 habeas relief with respect to the specific conduct of the prison 7 authorities that is the subject of the present petition. 8 Court takes judicial notice of the docket in Mimms v. Galaza, 9 Warden, no. 1:08-cv-0532-AWI-WMW-HC and of documents and exhibits Fed. R. Evid. 201(b); United States v. Bernal- A review of the Court’s own The 10 filed in that action. 11 granted the respondent’s motion to dismiss and also denied the 12 petition for writ of habeas corpus, directing a judgment for the 13 respondent. In that proceeding, the Court ultimately (Order filed March 12, 2009, doc. 17, 2: 22-23.) 14 III. 15 The Court must determine whether the petition in the present 16 17 Successive Petition case is barred by 28 U.S.C. § 2244 as a successive petition. A. Legal Standards 18 Because the petition in the present case was filed after the 19 enactment of the Antiterrorism and Effective Death Penalty Act of 20 1996 (AEDPA), the AEDPA applies to the petition. 21 Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 22 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 23 Lindh v. A federal court must dismiss a second or successive petition 24 that raises the same grounds as a prior petition. 25 § 2244(b)(1). 26 petition raising a new ground unless the petitioner can show that 27 1) the claim rests on a new, retroactive, constitutional right or 28 2) the factual basis of the claim was not previously discoverable 28 U.S.C. The Court must also dismiss a second or successive 3 1 through due diligence, and these new facts establish by clear and 2 convincing evidence that but for the constitutional error, no 3 reasonable fact finder would have found the applicant guilty of 4 the underlying offense. 5 it is not the district court that decides whether a second or 6 successive petition meets these requirements, which allow a 7 petitioner to file a second or successive petition. 8 9 28 U.S.C. § 2244(b)(2)(A)-(B). However, Section 2244(b)(3)(A) provides, “Before a second or successive application permitted by this section is filed in the 10 district court, the applicant shall move in the appropriate court 11 of appeals for an order authorizing the district court to 12 consider the application.” 13 obtain leave from the Ninth Circuit before he or she can file a 14 second or successive petition in district court. 15 Turpin, 518 U.S. 651, 656-657 (1996). 16 any claim presented in a second or successive habeas corpus 17 application under section 2254 that was presented in a prior 18 application unless the Court of Appeals has given Petitioner 19 leave to file the petition. 20 limitation has been characterized as jurisdictional. 21 States v. Key, 205 F.3d 773, 774-75 (5th Cir. 2000); Pratt v. 22 United States, 129 F.3d 54, 57 (1st Cir. 1997); Nunez v. United 23 States, 96 F.3d 990, 991 (7th Cir. 1996); Greenawalt v. Stewart, 24 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 25 (1997) (recognizing the limitation as one affecting the scope of 26 the writ). 27 28 In other words, a petitioner must See Felker v. This Court must dismiss 28 U.S.C. § 2244(b)(1). This See, United A subsequent petition is not subject to the bar of § 2244 if the original petition was not adjudicated on its merits and was 4 1 dismissed for failure to exhaust state remedies. 2 McDaniel, 529 U.S. 473, 485-86 (2000). 3 petition because it does not state a claim for habeas relief is a 4 dismissal on the merits for the purpose of 28 U.S.C. § 2244. 5 Dellenbach v. Hanks, 76 F.3d 820, 822-23 (7th Cir. 1996) 6 (distinguishing between a dismissal for failure to state a claim 7 and a dismissal because insufficient substantiation of a claim 8 was provided); see, Williams v. Armontrout, 855 F.2d 578, 580 9 (8th Cir. 1988) (dismissal for legal insufficiency, or not Slack v. A dismissal of a § 2254 10 stating facts constituting a violation of constitutional rights 11 as a matter of law, was held to be a decision on the merits); 12 cf., Del Campo v. Kennedy, 491 F.Supp.2d 891, 902 (N.D.Cal. 2006) 13 (citing Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 399 14 n. 3 (1981), and noting that historically, courts have considered 15 a dismissal of a civil claim with prejudice for failure to state 16 claim to be a dismissal on the merits for res judicata purposes). 17 18 B. The Disposition of the Previous Petition In Mimms v. Galaza, no. 1:08-cv-0532-AWI-WMW-HC, the motion 19 to dismiss was granted because the petition failed to state a 20 claim for habeas relief, and the petition was denied for 21 Petitioner’s procedural default of failing to exhaust 22 administrative remedies. 23 failure to state a claim and to exhaust state remedies and 24 procedural default. 25 Magistrate Judge had recommended dismissal because of failure to 26 state a claim. 27 dispositive order, the Court adopted the Magistrate Judge’s 28 findings and recommendations in full. The respondent had moved to dismiss for (Mot. to Dismiss, doc. 10, 3-5.) (Doc. 13, filed January 12, 2009.) 5 The (Doc. 17, 2). In the The Court 1 further concluded that Petitioner had procedurally defaulted on 2 his claim in the California Supreme Court because that court 3 denied Petitioner’s habeas petition with a citation to In re 4 Dexter, 25 Cal.3d 921 (1979), which holds that a litigant is not 5 entitled to judicial relief unless he or she has exhausted 6 available administrative remedies. 7 (Id.) In summary, in the previous action, this Court considered 8 Petitioner’s claim that his confinement was unlawful and violated 9 the Constitution because his maximum release date of February 10, 10 2007, was changed to his earliest possible release date. 11 1:08-cv-0532-AWI-WMW-HC, doc. 13, 4.) 12 the failure of the petition to state a claim and the failure to 13 exhaust state administrative remedies. 14 15 C. (No. The Court adjudicated both (Id., docs. 13, 17, 18.) Failure to State a Claim In the findings and recommendations filed in Mimms v. 16 Galaza, the Court reasoned that Petitioner had not stated 17 sufficient, specific facts to specify a constitutional or legal 18 basis for relief. 19 initial petition was dismissed in part because of an insufficient 20 specification of facts, and not necessarily because Petitioner’s 21 claim, even if factually supported, could not constitute a claim 22 warranting habeas relief. 23 (Id., doc. 13, 4-5.) It thus appears that the Accordingly, the Court concludes that to the extent that the 24 initial petition was dismissed for failure to state a claim, it 25 was not a dismissal for legal insufficiency as a matter of law. 26 Thus, it did not constitute an adjudication on the merits that 27 would render the present petition successive and result in an 28 absence of subject matter jurisdiction in this Court. 6 1 D. Failure to Exhaust Administrative Remedies 2 3 1. Legal Standards This Court cannot hear a federal petition for writ of habeas 4 corpus unless the highest state court was given a full and fair 5 opportunity to hear a claim. 6 presentation” requirement is not satisfied if the state’s highest 7 court does not reach the merits of a claim due to the procedural 8 context in which it was presented. 9 36, 38 (9th Cir. 1994). 28 U.S.C. § 2254(a). The “fair Roettgen v. Copeland, 33 F.3d Generally, a dismissal without prejudice 10 for a lack of exhaustion of state remedies is not an adjudication 11 on the merits. 12 (2000) (holding that the dismissal of a prior petition for 13 failure to exhaust state remedies was not an adjudication on the 14 merits, and thus a later petition was not a second or successive 15 petition). 16 exhaust in the future, the petition should be dismissed, not 17 procedurally barred. 18 (1989). 19 in state court and the claim “can no longer be raised because of 20 a failure to follow the prescribed procedure for presenting such 21 an issue, however, the claim is procedurally barred and the 22 petition must be denied.” 23 (9th Cir. 1991). 24 See, Slack v. McDaniel, 529 U.S. 473, 485-87 If the petitioner fails to exhaust but may be able to Castille v. Peoples, 489 U.S. 346, 351 Where a petitioner fails to exhaust his claim properly 2. Johnson v. Lewis, 929 F.2d 460, 463 Petitioner’s Exhaustion of Administrative Remedies 25 In the present petition, Petitioner alleges only that he 26 initially filed a grievance and resubmitted a claim: 27 28 10. On or about May 1, 2007, Petitioner submitted appeal (602) at Corcoran prison. Petitioner argued that 7 1 prison officials unlawfully altered his maximum term of imprisonment. 2 3 4 5 6 7 11. On or about June 1, 2007, prison officials responded to the 602 on the informal level. In pursuant (sic) to section 667(E) of the Penal Code prison officials calculated Petitioner’s term. At the conclusion it was determined that February 10, 2009, was Petitioner’s maximum term of imprisonment (see exhibit-A-calculation worksheet) 12. On or about August 1, 2007, Petitioner resubmitted the 602. However on the first level of the 602 prison officials cancel. Prison officials claimed petitioner failed to attend a hearing. 8 (Pet. 8.) 9 Petitioner then addresses exhaustion in the state courts, 10 but he does not allege that any additional efforts were 11 undertaken. He alleges that he filed a habeas corpus petition in 12 the California Supreme Court on October 17, 2007, which was 13 denied on or about April 1, 2008, in case no. S157285. (Pet. 9.) 14 Although Petitioner did not submit a copy of the California 15 Supreme Court’s order denying the petition, the Court takes 16 judicial notice of the motion to dismiss and supporting exhibits 17 filed by the respondent in Mimms v. Galaza, no. 1:08-cv-0053218 AWI-WMW-HC, and specifically Doc. 10-8, page 2, consisting of a 19 copy of the California Supreme Court docket, which reflects that 20 in California Supreme Court case no. S157285, on April 9, 2008, 21 the Supreme Court denied Petitioner’s petition for writ of habeas 22 corpus, which had been filed on October 17, 2007. The notes to 23 the denial state, “(See In re Dexter (1979) 25 Cal. 3d 921.)” 24 3. Analysis 25 In this case, the California Supreme Court denied 26 Petitioner’s state petition with a citation to In re Dexter, 25 27 Cal.3d 921, 925 (1979), which holds that “a litigant will not be 28 8 1 afforded judicial relief unless he has exhausted available 2 administrative remedies.” 3 administrative remedies before seeking collateral review in the 4 state courts. 5 Petitioner thus failed to exhaust his Further, at the time Petitioner filed his petition, the 6 claim could no longer be raised because of Petitioner’s failure 7 to follow the prescribed procedure of exhausting prison 8 administrative remedies. 9 forth possible grounds for rejection of administrative appeals in Cal. Code Regs. tit 15, § 3084.3 sets 10 the prison context, which include bypassing informal attempts at 11 resolution and untimeliness. 12 rejection if “[t]ime limits for submitting the appeal are 13 exceeded and the appellant had the opportunity to file within the 14 prescribed time constraints.” 15 provides in pertinent part that an appellant must submit an 16 appeal within fifteen (15) working days of the event or decision 17 being appealed, or of receiving an unacceptable lower level 18 appeal decision. Section 3084.3(c)(6) provides for Cal. Code Regs. tit. 15, § 3084.6 19 Presenting the habeas petition to the California Supreme 20 Court without exhausting the prison’s administrative remedies 21 essentially foreclosed any consideration of the merits of the 22 petition. 23 therefore, is barred from federal habeas review. 24 U.S. at 351; Roettgen, 33 F.3d at 38; see, Saunders v. Garrison, 25 2008 WL 5219876, *3 (E.D.Cal. 2008). 26 not have timely exhausted his claims, he was precluded from 27 curing his procedural default, and his claim can no longer be 28 raised. Thus, the petition was not “fairly presented” and, Castille, 489 Because Petitioner could This Court has already expressly denied a petition 9 1 raising the same claim and has adjudicated Petitioner’s 2 procedural default on the merits. 3 Pursuant to 28 U.S.C. § 2244(b)(1), this Court must dismiss 4 any claim presented in a second or successive habeas corpus 5 application under Section 2254 that was presented in a prior 6 application unless the Court of Appeals has given Petitioner 7 leave to file the petition. 8 same claim as in the previous petition, and no leave to proceed 9 has been given to Petitioner from the Court of Appeals. 10 11 12 The present petition asserts the Therefore, the Court concludes that the petition must be dismissed pursuant to § 2244(b)(1) as a successive petition. Further, because the Court must dismiss the petition, the 13 Court will not consider Petitioner’s motion for summary judgment 14 filed on October 8, 2009 (doc. 7); motion for temporary 15 restraining order filed on February 11, 2010 (doc. 8); and motion 16 for an evidentiary hearing filed on March 17, 2010 (doc. 9). 17 motions will be disregarded. 18 IV. 19 The Unless a circuit justice or judge issues a certificate of Certificate of Appealability 20 appealability, an appeal may not be taken to the court of appeals 21 from the final order in a habeas proceeding in which the 22 detention complained of arises out of process issued by a state 23 court. 24 U.S. 322, 336 (2003). 25 only if the applicant makes a substantial showing of the denial 26 of a constitutional right. 27 petitioner must show that reasonable jurists could debate whether 28 the petition should have been resolved in a different manner or 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). 10 Under this standard, a 1 that the issues presented were adequate to deserve encouragement 2 to proceed further. 3 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 4 certificate should issue if the Petitioner shows that jurists of 5 reason would find it debatable whether the petition states a 6 valid claim of the denial of a constitutional right and that 7 jurists of reason would find it debatable whether the district 8 court was correct in any procedural ruling. 9 529 U.S. 473, 483-84 (2000). In determining this issue, a court Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, 10 conducts an overview of the claims in the habeas petition, 11 generally assesses their merits, and determines whether the 12 resolution was debatable among jurists of reason or wrong. 13 It is necessary for an applicant to show more than an absence of 14 frivolity or the existence of mere good faith; however, it is not 15 necessary for an applicant to show that the appeal will succeed. 16 Id. at 338. 17 A district court must issue or deny a certificate of 18 appealability when it enters a final order adverse to the 19 applicant. Id. 20 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 21 debate whether the petition should have been resolved in a 22 different manner. 23 of the denial of a constitutional right. 24 will decline to issue a certificate of appealability. Petitioner has not made a substantial showing Accordingly, the Court 25 V. 26 Accordingly, it is RECOMMENDED that: 27 1) The petition be DISMISSED as successive; 28 2) The Court DISREGARD Petitioner’s motion for summary Recommendation 11 1 judgment filed on October 8, 2009 (doc. 7); motion for temporary 2 restraining order filed on February 11, 2010 (doc. 8); and motion 3 for an evidentiary hearing filed on March 17, 2010 (doc. 9); 4 5 3) The Court DECLINE to issue a certificate of appealability; and 6 7 4) The Clerk close this action because the dismissal will terminate the action. 8 These findings and recommendations are submitted to the 9 United States District Court Judge assigned to the case, pursuant 10 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 11 the Local Rules of Practice for the United States District Court, 12 Eastern District of California. 13 being served with a copy, any party may file written objections 14 with the Court and serve a copy on all parties. Such a document 15 should be captioned “Objections to Magistrate Judge’s Findings 16 and Recommendations.” 17 and filed within fourteen (14) days (plus three (3) days if 18 served by mail) after service of the objections. 19 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 20 636 (b)(1)(C). 21 objections within the specified time may waive the right to 22 appeal the District Court’s order. 23 1153 (9th Cir. 1991). Within thirty (30) days after Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 24 25 IT IS SO ORDERED. 26 Dated: ie14hj July 14, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 27 28 12
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