-SMS (HC) Murphy v. Gonzalez, No. 1:2011cv00013 - Document 7 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sandra M. Snyder on 1/5/2011 recommending that 1 Petition for Writ of Habeas Corpus be DISMISSED as successive. Referred to Judge Oliver W. Wanger; Objections to F&R due by 2/10/2011. (Lundstrom, T)
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-SMS (HC) Murphy v. Gonzalez Doc. 7 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ANDRE L. MURPHY, SR., 11 Petitioner, 12 13 v. 14 T. GONZALEZ, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—00013-OWW-SMS-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 in 22 this Court on December 20, 2010, and transferred to this division 23 on January 4, 2011. 24 II. Screening the Petition 25 Rule 4 of the Habeas Rules requires the Court to make a 26 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 serving a sentence of thirty-nine (39) years 24 to life imposed in 1999 by the Fresno County Superior Court for 25 assault with great bodily injury. 26 Petitioner challenges his 1999 conviction on grounds of 27 ineffective assistance of counsel. 28 Background (Pet. 1.) In the petition, The present petition is not the first petition filed with 2 1 respect to the judgment pursuant to which Petitioner is detained. 2 The Court may take judicial notice of court records. 3 Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 4 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 5 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). 6 The Court will take judicial notice of its own dockets. 7 Fed. R. On September 26, 2006, a habeas petition challenging 8 Petitioner’s Fresno County conviction and sentence was denied on 9 the merits by this Court in Andre L. Murphy, Sr. v. D. L. 10 Runnels, 1:05-cv-00186-AWI-TAG. 11 the petition on the merits and with prejudice on the basis of 12 untimeliness. (Docs. 16-18.) The Court denied (Doc. 16, 3-13; Doc. 18.) 13 III. Successive Petition 14 Because the petition was filed after April 24, 1996, the 15 effective date of the Antiterrorism and Effective Death Penalty 16 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 17 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 18 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 19 Lindh Under the AEDPA, a federal court must dismiss a second or 20 successive petition that raises the same grounds as a prior 21 petition. 22 second or successive petition raising a new ground unless the 23 petitioner can show that 1) the claim rests on a new, 24 retroactive, constitutional right or 2) the factual basis of the 25 claim was not previously discoverable through due diligence, and 26 the new facts establish by clear and convincing evidence that but 27 for the constitutional error, no reasonable factfinder would have 28 found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(1). 3 The Court must also dismiss a 28 U.S.C. 1 2 § 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a 3 second or successive petition meets these requirements, which 4 allow a petitioner to file a second or successive petition. 5 Section 2244(b)(3)(A) provides, “Before a second or successive 6 application permitted by this section is filed in the district 7 court, the applicant shall move in the appropriate court of 8 appeals for an order authorizing the district court to consider 9 the application.” In other words, a petitioner must obtain leave 10 from the Ninth Circuit before he or she can file a second or 11 successive petition in district court. 12 U.S. 651, 656-657 (1996). 13 presented in a second or successive habeas corpus application 14 under section 2254 unless the Court of Appeals has given 15 Petitioner leave to file the petition. 16 This limitation has been characterized as jurisdictional. 17 v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 18 F.3d 1270, 1274 (9th Cir. 2001). See Felker v. Turpin, 518 This Court must dismiss any claim 28 U.S.C. § 2244(b)(1). Burton 19 A disposition is “on the merits” if the district court 20 either considered and rejected the claim, or determined that the 21 underlying claim would not be considered by a federal court. 22 McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing 23 Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990)). 24 Here, the first petition concerning the Fresno County 25 judgment was denied on the merits. 26 habeas petition on the ground of untimeliness is a determination 27 “on the merits” for purposes of the rule against successive 28 petitions such that a further petition challenging the same 4 A dismissal of a federal 1 conviction is “second or successive” for purposes of 28 U.S.C. § 2 2244(b). 3 2009). 4 incurable bar to federal review of the underlying claims. 5 1030. 6 McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir. This is because such a dismissal is a permanent and Id. at Petitioner makes no showing that he has obtained prior leave 7 from the Ninth Circuit to file his successive petition attacking 8 the conviction. 9 consider Petitioner’s renewed application for relief from that That being so, this court has no jurisdiction to 10 conviction under section 2254 and must dismiss the petition. 11 See, Felker v. Turpin, 518 U.S. 651, 656-57; Burton v. Stewart, 12 549 U.S. 147, 152; Cooper v. Calderon, 274 F.3d 1270, 1274. 13 Petitioner desires to proceed in bringing this petition for writ 14 of habeas corpus, he must file for leave to do so with the Ninth 15 Circuit. If See 28 U.S.C. § 2244(b)(3). 16 III. 17 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 18 appealability, an appeal may not be taken to the Court of Appeals 19 from the final order in a habeas proceeding in which the 20 detention complained of arises out of process issued by a state 21 court. 22 U.S. 322, 336 (2003). 23 only if the applicant makes a substantial showing of the denial 24 of a constitutional right. 25 standard, a petitioner must show that reasonable jurists could 26 debate whether the petition should have been resolved in a 27 different manner or that the issues presented were adequate to 28 deserve encouragement to proceed further. 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). 5 Under this Miller-El v. Cockrell, 1 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 2 (2000)). 3 jurists of reason would find it debatable whether the petition 4 states a valid claim of the denial of a constitutional right and 5 that jurists of reason would find it debatable whether the 6 district court was correct in any procedural ruling. 7 McDaniel, 529 U.S. 473, 483-84 (2000). 8 9 A certificate should issue if the Petitioner shows that Slack v. In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their 10 merits, and determines whether the resolution was wrong or 11 debatable among jurists of reason. 12 U.S. at 336-37. 13 than an absence of frivolity or the existence of mere good faith; 14 however, it is not necessary for an applicant to show that the 15 appeal will succeed. Miller-El v. Cockrell, 537 It is necessary for an applicant to show more Id. at 338. 16 A district court must issue or deny a certificate of 17 appealability when it enters a final order adverse to the 18 applicant. 19 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, Petitioner has not demonstrated that jurists of reason 20 would find it debatable whether or not the petition states a 21 valid claim of the denial of a constitutional right. 22 has not made the substantial showing required for issuance of a 23 certificate of appealability. 24 IV. Recommendation 25 Accordingly, it is RECOMMENDED that: 26 1) The petition be DISMISSED as successive; and 27 2) The Court DECLINE to issue a certificate of 28 appealability; and 6 Petitioner 1 2 3) The Clerk close this action because the dismissal will terminate the action. 3 These findings and recommendations are submitted to the 4 United States District Court Judge assigned to the case, pursuant 5 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 6 the Local Rules of Practice for the United States District Court, 7 Eastern District of California. 8 being served with a copy, any party may file written objections 9 with the Court and serve a copy on all parties. Within thirty (30) days after Such a document 10 should be captioned “Objections to Magistrate Judge’s Findings 11 and Recommendations.” 12 and filed within fourteen (14) days (plus three (3) days if 13 served by mail) after service of the objections. 14 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 15 636 (b)(1)(C). 16 objections within the specified time may waive the right to 17 appeal the District Court’s order. 18 1153 (9th Cir. 1991). Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 19 20 IT IS SO ORDERED. 21 Dated: icido3 January 5, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 7
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