(HC) Sanchez v. Clark, No. 1:2010cv01000 - Document 8 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Writ of Habeas Corpus as a Successive Petition and to Decline to Issue a Certificate of Appealability; Deadline for Objections: Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 12/7/2010. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 1/10/2011. (Sant Agata, S)
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(HC) Sanchez v. Clark Doc. 8 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RAUL S. SANCHEZ, ) ) ) ) ) ) ) ) ) ) ) ) 11 Petitioner, 12 13 14 15 v. KEN CLARK, Warden, Respondent. 16 1:10-cv—01000-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS AS A SUCCESSIVE PETITION (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 with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 The matter was referred to the Magistrate Judge pursuant to 28 21 U.S.C. § 636(b) and Local Rules 302 and 304. Pending before the 22 Court is the petition, which was filed on June 4, 2010. 23 I. Screening the Petition 24 Rule 4 of the Rules Governing § 2254 Cases in the United 25 States District Courts (Habeas Rules) requires the Court to make 26 a preliminary review of each petition for writ of habeas corpus. 27 The Court must summarily dismiss a petition "[i]f it plainly 28 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 California Substance Abuse Background 24 Treatment Facility and State Prison at Corcoran, California 25 (CSATFSP), who is serving a sentence of fifteen years to life 26 imposed by the Fresno County Superior Court for a murder 27 committed on or about August 4, 1992. 28 challenges his conviction on the grounds that his plea should be 2 (Pet. 12, 64.) Petitioner 1 withdrawn because his confession was involuntary, he was denied 2 the assistance of counsel during interrogation, and the sentence 3 was misrepresented. 4 (Pet. 1-31.) The present petition is not the first petition filed with 5 respect to the judgment pursuant to which Petitioner is detained. 6 The Court may take judicial notice of court records. 7 Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 8 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 9 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). 10 Fed. R. The Court will take judicial notice of its own dockets. 11 On June 18, 2004, a habeas petition challenging Petitioner’s 12 Fresno County conviction and sentence was denied on the merits by 13 this Court in Raul Segura Sanchez v. Steven Cambra, 1:98-cv- 14 05329-REC-DLB. 15 petition was untimely because it was filed outside of the statute 16 of limitations provided for in 28 U.S.C. § 2244(d)(1), and 17 Petitioner was not entitled to tolling under the statute or under 18 the doctrine of equitable tolling. 19 III. Successive Petition 20 The Court must determine whether the petition in the present 21 22 (Docs. 71, 75, 76.) The Court concluded that the (Doc. 71, 3-30.) case is barred by 28 U.S.C. § 2244 as a successive petition. A. Legal Standards 23 Because the petition in the present case was filed after the 24 enactment of the Antiterrorism and Effective Death Penalty Act of 25 1996 (AEDPA), the AEDPA applies to the petition. 26 Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 27 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 28 Lindh v. A federal court must dismiss a second or successive petition 3 1 that raises the same grounds as a prior petition. 2 § 2244(b)(1). 3 petition raising a new ground unless the petitioner can show that 4 1) the claim rests on a new, retroactive, constitutional right or 5 2) the factual basis of the claim was not previously discoverable 6 through due diligence, and the new facts establish by clear and 7 convincing evidence that but for the constitutional error, no 8 reasonable fact finder would have found the applicant guilty of 9 the underlying offense. 10 28 U.S.C. The Court must also dismiss a second or successive 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a 11 second or successive petition meets these requirements, which 12 allow a petitioner to file a second or successive petition. 13 Section 2244(b)(3)(A) provides, “Before a second or successive 14 application permitted by this section is filed in the district 15 court, the applicant shall move in the appropriate court of 16 appeals for an order authorizing the district court to consider 17 the application.” 18 from the Ninth Circuit before he or she can file a second or 19 successive petition in district court. 20 U.S. 651, 656-657 (1996). 21 presented in a second or successive habeas corpus application 22 under section 2254 that was presented in a prior application 23 unless the Court of Appeals has given Petitioner leave to file 24 the petition. 25 characterized as jurisdictional. 26 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 27 Cir. 2001). 28 In other words, a petitioner must obtain leave 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. A disposition is “on the merits” if the district court 4 1 either considered and rejected the claim, or determined that the 2 underlying claim would not be considered by a federal court. 3 McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing 4 Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990)). 5 is successive within the meaning of § 2244(b) if the basic thrust 6 or gravamen of the legal claim is the same, regardless of whether 7 the basic claim is supported by new and different legal 8 arguments; further, identical grounds may often be proved by 9 different factual allegations. 10 11 12 A claim Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir. 1999). B. Analysis Here, Petitioner’s present petition challenges the same 13 judgment that his previous petition challenged. 14 dismissal was for untimeliness. 15 petition on the ground of untimeliness is a determination “on the 16 merits” for purposes of the rule against successive petitions 17 such that a further petition challenging the same conviction is 18 “second or successive” for purposes of 28 U.S.C. § 2244(b). 19 McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir. 2009). 20 because such a dismissal is a permanent and incurable bar to 21 federal review of the underlying claims. 22 23 C. The previous A dismissal of a federal habeas This is Id. at 1030. Dismissal of the Petition Pursuant to 28 U.S.C. § 2244(b)(1) through (3), unless the 24 Court of Appeals has given Petitioner leave to file the petition, 25 this Court must dismiss any claim presented in a second or 26 successive habeas corpus application under section 2254 that was 27 either presented in a prior application, or was not presented in 28 a prior application but does not come within the exceptions noted 5 1 2 in § 2244(b)(2). The claims in the present petition address the same 3 conviction that was the subject of the previous petition that was 4 determined on the merits. 5 claims has been given to Petitioner by the Court of Appeals. 6 7 No leave to proceed with any of his Therefore, the Court concludes that the petition must be dismissed pursuant to § 2244(b) as a successive petition. 8 IV. 9 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 10 appealability, an appeal may not be taken to the Court of Appeals 11 from the final order in a habeas proceeding in which the 12 detention complained of arises out of process issued by a state 13 court. 14 U.S. 322, 336 (2003). 15 only if the applicant makes a substantial showing of the denial 16 of a constitutional right. 17 standard, a petitioner must show that reasonable jurists could 18 debate whether the petition should have been resolved in a 19 different manner or that the issues presented were adequate to 20 deserve encouragement to proceed further. 21 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 22 (2000)). 23 jurists of reason would find it debatable whether the petition 24 states a valid claim of the denial of a constitutional right and 25 that jurists of reason would find it debatable whether the 26 district court was correct in any procedural ruling. 27 McDaniel, 529 U.S. 473, 483-84 (2000). 28 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 6 1 the claims in the habeas petition, generally assesses their 2 merits, and determines whether the resolution was wrong or 3 debatable among jurists of reason. 4 U.S. at 336-37. 5 than an absence of frivolity or the existence of mere good faith; 6 however, it is not necessary for an applicant to show that the 7 appeal will succeed. Miller-El v. Cockrell, 537 It is necessary for an applicant to show more Id. at 338. 8 A district court must issue or deny a certificate of 9 appealability when it enters a final order adverse to the 10 11 applicant. Rule 11(a) of the Rules Governing Section 2254 Cases. Here, Petitioner has not demonstrated that jurists of reason 12 would find it debatable whether or not the petition states a 13 valid claim of the denial of a constitutional right. 14 has not made the substantial showing required for issuance of a 15 certificate of appealability. 16 V. 17 Accordingly, it is RECOMMENDED that: 18 1) The petition be DISMISSED as successive; and 19 Petitioner 2) The Court DECLINE to issue a certificate of 20 21 22 Recommendation appealability; and 3) The Clerk close this action because the 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 December 7, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8