(HC) Shotwell v. Hedgpeth, No. 1:2010cv01496 - Document 11 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 10/2/2011 recommending that 1 Petition for Writ of Habeas Corpus be DISMISSED as successive and to deny request for extension time to file further documents. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/7/2011. (Lundstrom, T)
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(HC) Shotwell v. Hedgpeth Doc. 11 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 MANUEL SHOTWELL, 12 13 14 15 16 ) ) Petitioner, ) ) v. ) ) ) A. HEDGPETH, ) ) Respondent. ) ________________________________) 1:10-cv-01496 LJO MJS HC FINDINGS AND RECOMMENDATION TO DISMISS SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2244(b) AND TO DENY PETITIONER’S REQUEST FOR EXTENSION OF TIME TO FILE FURTHER DOCUMENTS 17 18 19 Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Katherine Hart, Esq. 20 In the petition filed on August 19, 2010, Petitioner raises several challenges to his May 21 2, 2002 conviction in Kern County Superior Court for conspiracy to commit murder and of 22 attempted premeditated murder. A review of the Court’s docket and files revealed that 23 Petitioner has previously sought federal habeas relief with respect to this conviction. In 24 Shotwell v. Evans, 2011 U.S. Dist. LEXIS 73427 (E.D. Cal. June 30, 2011) (Case No. 1:04- 25 CV-6496-LJO-DJB HC), Petitioner filed a petition for writ of habeas corpus challenging the 26 same underlying conviction. The petition was dismissed on the merits on June 30, 2011. 27 In light of the prior petition for writ of habeas corpus, on July 29, 2011, the Court issued 28 an order to show cause why the petition should not be dismissed as untimely or successive. U .S. D istrict C ourt E. D . C alifornia -1Dockets.Justia.com 1 On September 27, 2011, Petitioner filed a response to the order to show cause. Petitioner 2 explains that “Petitioner’s 2010 federal habeas petition alleges, for the most part, different 3 grounds from those alleged in Petitioner’s earlier 2004 petition.” (Response, ECF No. 10 at 4 3.) The first petition mostly focused on Petitioner’s mental state and his competency to stand 5 trial or have the requisite mental state required to be found guilty of the underlying offenses. 6 Alternatively, the instant petition focuses mostly on trial counsel’s failure to investigate the 7 truthfulness of the testimony of the victim at trial.1 (Id. at 3-4.) Alleging that the claims in the 8 instant petition, notwithstanding one duplicative claim, were newly discovered, and not 9 previously presented, Petitioner asserts that the petition is not successive. Finally, Petitioner 10 requests an extension of sixty (60) days in which to file additional records to show that the 11 petition is not successive or untimely. 12 I. DISCUSSION 13 A court must dismiss a second or successive petition that raises the same grounds as 14 a prior petition. 28 U.S.C. § 2244(b)(1). A court must also dismiss a second or successive 15 petition raising a new ground unless the petitioner can show that 1) the claim rests on a new 16 constitutional right, made retroactive by the United States Supreme Court or 2) the factual 17 basis of the claim was not previously discoverable through due diligence, and these new facts 18 establish by clear and convincing evidence that but for the constitutional error, no reasonable 19 factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 20 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a second or 21 successive petition meets these requirements; the Petitioner must first file a motion with the 22 appropriate court of appeals to be authorized to file a second or successive petition with the 23 district court. 24 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted 25 by this section is filed in the district court, the applicant shall move in the appropriate court of 26 appeals for an order authorizing the district court to consider the application." In other words, 27 1 28 Petitioner does adm it that his claim in the current petition that trial counsel was ineffective for failing to call an alibi witness was already presented in the earlier petition. U .S. D istrict C ourt E. D . C alifornia -2- 1 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 2 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must 3 dismiss any second or successive petition unless the Court of Appeals has given Petitioner 4 leave to file the petition because a district court lacks subject-matter jurisdiction over a second 5 or successive petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997). 6 Because the current petition was filed after April 24, 1996, the provisions of the 7 Antiterrorism and Effective Death Penalty Act of 1996 apply to Petitioner's current petition. 8 Lindh v. Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that he has obtained 9 prior leave from the Ninth Circuit to file his successive petition attacking the conviction. That 10 being so, this Court has no jurisdiction to consider Petitioner's renewed application for relief 11 under Section 2254 and must dismiss the petition. See Greenawalt, 105 F.3d at 1277. If 12 Petitioner desires to proceed in bringing this petition for writ of habeas corpus, he must file for 13 leave to do so with the Ninth Circuit. See 28 U.S.C. § 2244(b)(3). 14 II. RECOMMENDATION 15 Accordingly, the Court HEREBY RECOMMENDS the habeas corpus petition be 16 DISMISSED as successive. The Court further RECOMMENDS that Petitioner’s request for an 17 extension of time to file further documents in support of his response to the order to show 18 cause be DENIED. 19 This Findings and Recommendation is submitted to the assigned United States District 20 Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 21 Local Rules of Practice for the United States District Court, Eastern District of California. 22 Within thirty (30) days after the date of service of this Findings and Recommendation, any 23 party may file written objections with the Court and serve a copy on all parties. Such a 24 document should be captioned “Objections to Magistrate Judge’s Findings and 25 Recommendation.” Replies to the Objections shall be served and filed within fourteen (14) 26 days after service of the Objections. The Finding and Recommendation will then be submitted 27 to the District Court for review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 28 (b)(1)(c). The parties are advised that failure to file objections within the specified time may U .S. D istrict C ourt E. D . C alifornia -3- 1 waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th 2 Cir. 1991). 3 IT IS SO ORDERED. 4 5 Dated: ci4d6 October 2, 2011 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia -4-
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