-SKO (HC) Nava v. Gonzalez, No. 1:2010cv01769 - Document 9 (E.D. Cal. 2011)
Court Description: FINDINGS And RECOMMENDATIONS To Dismiss Petition As Successive Pursuant To 28 U.S.C. 2244 (b) (Doc. 1 ) And To Decline To Issue A Certificate Of Appealibility, Deadline For Objections: Thirty (30) Days, signed by Magistrate Judge Sheila K. Oberto on 1/3/2011. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 2/7/2011. (Fahrney, E)
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-SKO (HC) Nava v. Gonzalez Doc. 9 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EDGAR NAVA, 11 Petitioner, 12 13 14 v. FERNANDO GONZALEZ, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01769-AWI-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION AS SUCCESSIVE PURSUANT TO 28 U.S.C. § 2244(b) (Doc. 1) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254. The matter has been referred to the 20 Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 21 302 and 303. Pending before the Court is the petition filed on 22 September 27, 2010. 23 I. Screening the Petition 24 Rule 4 of the Habeas Rules requires the Court to make a 25 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 1 Dockets.Justia.com 1 petitioner is not entitled to relief in the district court....” 2 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 3 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 4 1990). 5 grounds of relief available to the Petitioner; 2) state the facts 6 supporting each ground; and 3) state the relief requested. 7 Notice pleading is not sufficient; rather, the petition must 8 state facts that point to a real possibility of constitutional 9 error. Habeas Rule 2(c) requires that a petition 1) specify all Rule 4, Advisory Committee Notes, 1976 Adoption; 10 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 11 Allison, 431 U.S. 63, 75 n.7 (1977)). 12 that are vague, conclusory, or palpably incredible are subject to 13 summary dismissal. 14 Cir. 1990). 15 Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 16 corpus either on its own motion under Habeas Rule 4, pursuant to 17 the respondent's motion to dismiss, or after an answer to the 18 petition has been filed. 19 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 20 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 21 II. 22 Petitioner is serving a sentence of twenty-five (25) years Background 23 to life imposed in 2006 by the Kings County Superior Court for 24 assault by an inmate serving a life term and possession of a 25 stabbing instrument in violation of Cal. Pen. Code §§ 4500 and 26 4502. 27 (87) years to life previously imposed in the Los Angeles County 28 Superior Court. (Pet. 1.) He is also serving a sentence of eighty-seven (Pet. 10.) 2 1 The present petition is not the first petition filed with 2 respect to the judgment pursuant to which Petitioner is detained. 3 The Court may take judicial notice of court records. 4 Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 5 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 6 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). 7 The Court will take judicial notice of its own dockets. 8 Fed. R. On March 5, 2010, a habeas petition challenging Petitioner’s 9 Kings County conviction and sentence was denied on the merits by 10 this Court in Edgar Nava v. Fernando Gonzales, 1:08-cv-1793-OWW- 11 JMD-HC. 12 had applied an instruction in an unconstitutional manner. (Doc. 13 26, 5:24-26.) 14 with prejudice. (Docs. 26, 28, 29.) Petitioner claimed that the jury The Court denied the petition on the merits and (Doc. 26, 8:8-10; doc. 28.) 15 III. Successive Petition 16 Because the petition was filed after April 24, 1996, the 17 effective date of the Antiterrorism and Effective Death Penalty 18 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 19 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 20 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 21 Lindh Under the AEDPA, a federal court must dismiss a second or 22 successive petition that raises the same grounds as a prior 23 petition. 24 second or successive petition raising a new ground unless the 25 petitioner can show that 1) the claim rests on a new, 26 retroactive, constitutional right or 2) the factual basis of the 27 claim was not previously discoverable through due diligence, and 28 the new facts establish by clear and convincing evidence that but 28 U.S.C. § 2244(b)(1). 3 The Court must also dismiss a 1 for the constitutional error, no reasonable factfinder would have 2 found the applicant guilty of the underlying offense. 3 § 2244(b)(2)(A)-(B). 4 28 U.S.C. However, it is not the district court that decides whether a 5 second or successive petition meets these requirements, which 6 allow a petitioner to file a second or successive petition. 7 Section 2244(b)(3)(A) provides, “Before a second or successive 8 application permitted by this section is filed in the district 9 court, the applicant shall move in the appropriate court of 10 appeals for an order authorizing the district court to consider 11 the application.” 12 from the Ninth Circuit before he or she can file a second or 13 successive petition in district court. 14 U.S. 651, 656-657 (1996). 15 presented in a second or successive habeas corpus application 16 under section 2254 that was presented in a prior application 17 unless the Court of Appeals has given Petitioner leave to file 18 the petition. 19 characterized as jurisdictional. 20 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 21 Cir. 2001). 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. 22 A disposition is “on the merits” if the district court 23 either considered and rejected the claim, or determined that the 24 underlying claim would not be considered by a federal court. 25 McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing 26 Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990)). 27 28 Here, the first petition concerning the Kings County judgment was denied on the merits. 4 Petitioner makes no showing 1 that he has obtained prior leave from the Ninth Circuit to file 2 his successive petition attacking the conviction. 3 this court has no jurisdiction to consider Petitioner’s renewed 4 application for relief from that conviction under section 2254 5 and must dismiss the petition. 6 651, 656-57; Burton v. Stewart, 549 U.S. 147, 152; Cooper v. 7 Calderon, 274 F.3d 1270, 1274. 8 in bringing this petition for writ of habeas corpus, he must file 9 for leave to do so with the Ninth Circuit. 10 That being so, See, Felker v. Turpin, 518 U.S. If Petitioner desires to proceed See 28 U.S.C. § 2244(b)(3). 11 IV. 12 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 13 appealability, an appeal may not be taken to the Court of Appeals 14 from the final order in a habeas proceeding in which the 15 detention complained of arises out of process issued by a state 16 court. 17 U.S. 322, 336 (2003). 18 only if the applicant makes a substantial showing of the denial 19 of a constitutional right. 20 standard, a petitioner must show that reasonable jurists could 21 debate whether the petition should have been resolved in a 22 different manner or that the issues presented were adequate to 23 deserve encouragement to proceed further. 24 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 25 (2000)). 26 jurists of reason would find it debatable whether the petition 27 states a valid claim of the denial of a constitutional right and 28 that jurists of reason would find it debatable whether the 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 5 1 district court was correct in any procedural ruling. 2 McDaniel, 529 U.S. 473, 483-84 (2000). 3 Slack v. In determining this issue, a court conducts an overview of 4 the claims in the habeas petition, generally assesses their 5 merits, and determines whether the resolution was wrong or 6 debatable among jurists of reason. 7 U.S. at 336-37. 8 than an absence of frivolity or the existence of mere good faith; 9 however, it is not necessary for an applicant to show that the 10 Miller-El v. Cockrell, 537 It is necessary for an applicant to show more appeal will succeed. Id. at 338. 11 A district court must issue or deny a certificate of 12 appealability when it enters a final order adverse to the 13 applicant. 14 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, Petitioner has not demonstrated that jurists of reason 15 would find it debatable whether or not the petition states a 16 valid claim of the denial of a constitutional right. 17 has not made the substantial showing required for issuance of a 18 certificate of appealability. 19 V. Recommendation 20 Accordingly, it is RECOMMENDED that: 21 1) The petition be DISMISSED as successive; and 22 Petitioner 2) The Court DECLINE to issue a certificate of 23 24 25 appealability; and 3) The Clerk close this action because the dismissal will terminate the action. 26 These findings and recommendations are submitted to the 27 United States District Court Judge assigned to the case, pursuant 28 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 6 1 the Local Rules of Practice for the United States District Court, 2 Eastern District of California. 3 being served with a copy, any party may file written objections 4 with the Court and serve a copy on all parties. 5 should be captioned “Objections to Magistrate Judge’s Findings 6 and Recommendations.” 7 and filed within fourteen (14) days (plus three (3) days if 8 served by mail) after service of the objections. 9 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § Within thirty (30) days after Such a document Replies to the objections shall be served The Court will 10 636 (b)(1)(C). 11 objections within the specified time may waive the right to 12 appeal the District Court’s order. 13 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 14 15 IT IS SO ORDERED. 16 Dated: ie14hj January 3, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 7
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