-SKO (HC) Owens v. Harrington, No. 1:2011cv00002 - Document 7 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to DISMISS 1 Petition as Successive Pursuant to 28 U.S.C. § 2244(b) and to DECLINE to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 1/18/2011, referred to Judge O'Neill. Objections to F&R due by 2/22/2011. (Marrujo, C)
Download PDF
<![CDATA[
-SKO (HC) Owens v. Harrington Doc. 7 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CURTIS OWENS, ) ) ) ) ) ) ) ) ) ) ) ) 11 Petitioner, 12 13 14 15 v. KELLY HARRINGTON, Respondent. 16 1:11-cv—00002-LJO-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 21 Rules 302 and 304. Pending before the Court is the petition, 22 which was filed on January 3, 2011. 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 Kern Valley State Prison (KVSP) 24 serving a sentence of twenty-five (25) years to life imposed in 25 the Fresno County Superior Court on December 5, 1999, for 26 burglary, attempted burglary, and related offenses. 27 In the petition, Petitioner challenges his conviction on grounds 28 relating to the Superior Court’s destruction of trial exhibits. Background 2 (Pet. 1, 3.) 1 (Pet. 6-8.) 2 The present petition is not the first petition filed with 3 respect to the judgment pursuant to which Petitioner is 4 incarcerated. 5 records. 6 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise Cascade 7 Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 8 699 (9th Cir. 1981). 9 own dockets. The Court may take judicial notice of court Fed. R. Evid. 201(b); United States v. Bernal-Obeso, The Court will take judicial notice of its 10 On April 20, 2007, a first amended habeas petition 11 challenging Petitioner’s 1999 convictions was denied by this 12 Court on the merits in Curtis Owens v. E. Roe, 1:03-cv-05327-LJO- 13 TAG. 14 that a notice of appeal from this Court’s judgment was filed on 15 May 22, 2007 (Doc. 59), and the appeal is presently pending. 16 A review through PACER of the Ninth Circuit’s docket reflects 17 that the appeal proceeds as Owens v. Harrington in case number 18 07-16013; briefing appears to have been completed, but no 19 decision has issued. (Docs. 53, 54, 38.) The docket of that proceeding reflects 20 III. 21 Because the petition in the present case was filed after the 22 enactment of the Antiterrorism and Effective Death Penalty Act of 23 1996 (AEDPA), the AEDPA applies to the petition. 24 Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 25 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 26 Successive Petition Lindh v. A federal court must dismiss a second or successive petition 27 that raises the same grounds as a prior petition. 28 § 2244(b)(1). 28 U.S.C. The Court must also dismiss a second or successive 3 1 petition raising a new ground unless the petitioner can show that 2 1) the claim rests on a new, retroactive, constitutional right or 3 2) the factual basis of the claim was not previously discoverable 4 through due diligence, and the new facts establish by clear and 5 convincing evidence that but for the constitutional error, no 6 reasonable factfinder would have found the applicant guilty of 7 the underlying offense. 8 9 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a second or successive petition meets these requirements, which 10 allow a petitioner to file a second or successive petition. 11 Section 2244(b)(3)(A) provides, “Before a second or successive 12 application permitted by this section is filed in the district 13 court, the applicant shall move in the appropriate court of 14 appeals for an order authorizing the district court to consider 15 the application.” 16 from the Ninth Circuit before he or she can file a second or 17 successive petition in district court. 18 U.S. 651, 656-657 (1996). 19 presented in a second or successive habeas corpus application 20 under section 2254 that was presented in a prior application 21 unless the Court of Appeals has given Petitioner leave to file 22 the petition. 23 characterized as jurisdictional. 24 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 25 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. 26 A disposition is “on the merits” if the district court 27 either considered and rejected the claim, or determined that the 28 underlying claim would not be considered by a federal court. 4 1 McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing 2 Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990)). 3 Here, the first petition concerning the Fresno County 4 judgment was denied on the merits. 5 pendency of the appeal from the judgment rendered by this Court 6 on the first petition. 7 is filed when a previous habeas petition is still pending before 8 the district court without a decision having been rendered, then 9 the new petition should be construed as a motion to amend the The Court has considered the It is established that if a new petition 10 pending petition. 11 2008). 12 situation where the district court has ruled on the initial 13 petition, and proceedings have begun in the Court of Appeals. 14 Beaty v. Schriro, 554 F.3d 780, 782-83 & n.1 (9th Cir. 2009), 15 cert. denied, -- U.S. --, 130 S.Ct. 364, 175 L.Ed.2d 50 (2009). 16 The petition presently before the Court is thus considered a 17 successive petition because the district court denied the first 18 petition on the merits and entered judgment, and the appeal is 19 pending in the Ninth Circuit. 20 Woods v. Carey, 525 F.3d 886, 888 (9th Cir. However, the Woods holding will not be extended to a Id. Petitioner makes no showing that he has obtained prior leave 21 from the Ninth Circuit to file his successive petition attacking 22 the judgment. 23 consider Petitioner’s renewed application for relief from that 24 convictions under section 2254 and must dismiss the petition. 25 See, Felker v. Turpin, 518 U.S. 651, 656-57; Burton v. Stewart, 26 549 U.S. 147, 152; Cooper v. Calderon, 274 F.3d 1270, 1274. 27 Petitioner desires to proceed in bringing this petition for writ 28 of habeas corpus, he must file for leave to do so with the Ninth Accordingly, this court has no jurisdiction to 5 If 1 Circuit. 2 IV. 3 Unless a circuit justice or judge issues a certificate of See 28 U.S.C. § 2244(b)(3). Certificate of Appealability 4 appealability, an appeal may not be taken to the Court of Appeals 5 from the final order in a habeas proceeding in which the 6 detention complained of arises out of process issued by a state 7 court. 8 U.S. 322, 336 (2003). 9 only if the applicant makes a substantial showing of the denial 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 10 of a constitutional right. 11 standard, a petitioner must show that reasonable jurists could 12 debate whether the petition should have been resolved in a 13 different manner or that the issues presented were adequate to 14 deserve encouragement to proceed further. 15 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 16 (2000)). 17 jurists of reason would find it debatable whether the petition 18 states a valid claim of the denial of a constitutional right and 19 that jurists of reason would find it debatable whether the 20 district court was correct in any procedural ruling. 21 McDaniel, 529 U.S. 473, 483-84 (2000). 22 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 23 the claims in the habeas petition, generally assesses their 24 merits, and determines whether the resolution was wrong or 25 debatable among jurists of reason. 26 U.S. at 336-37. 27 than an absence of frivolity or the existence of mere good faith; 28 however, it is not necessary for an applicant to show that the Miller-El v. Cockrell, 537 It is necessary for an applicant to show more 6 1 appeal will succeed. Id. at 338. 2 A district court must issue or deny a certificate of 3 appealability when it enters a final order adverse to the 4 applicant. 5 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, Petitioner has not demonstrated that jurists of reason 6 would find it debatable whether or not the petition states a 7 valid claim of the denial of a constitutional right. 8 has not made the substantial showing required for issuance of a 9 certificate of appealability. 10 V. 11 Accordingly, it is RECOMMENDED that: 12 1) The petition be DISMISSED as successive; and 13 Petitioner 2) The Court DECLINE to issue a certificate of 14 15 16 Recommendation appealability; and 3) The Clerk be DIRECTED to close this action because the dismissal will terminate the action. 17 These findings and recommendations are submitted to the 18 United States District Court Judge assigned to the case, pursuant 19 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 20 the Local Rules of Practice for the United States District Court, 21 Eastern District of California. 22 being served with a copy, any party may file written objections 23 with the Court and serve a copy on all parties. 24 should be captioned “Objections to Magistrate Judge’s Findings 25 and Recommendations.” 26 and filed within fourteen (14) days (plus three (3) days if 27 served by mail) after service of the objections. 28 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 7 The Court will 1 636 (b)(1)(C). 2 objections within the specified time may waive the right to 3 appeal the District Court’s order. 4 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 5 6 IT IS SO ORDERED. 7 Dated: ie14hj January 18, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
]]>
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.
