-BAM (HC) Herrera v Cash, No. 1:2011cv00521 - Document 30 (E.D. Cal. 2011)

Court Description: FINDINGS And RECOMMENDATIONS To Grant Respondent's Motion To Dismiss The First Amended Petition (Docs. 23 , 14 ), Findings And Recommendations To Dismiss The First Amended Petition For Lack Of Subject Matter Jursidiction (Doc. 14 ), Decline To Issue A Certificate Of Appealability, And Direct The Clerk To Close The Case, Objections Deadline: Thirty (30) Days, signed by Magistrate Judge Barbara A. McAuliffe on 12/23/2011. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 1/30/2012. (Fahrney, E)
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-BAM (HC) Herrera v Cash Doc. 30 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CARLOS HERRERA, 10 Petitioner, 11 v. 12 WARDEN CASH, 13 Respondent. 14 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—00521–AWI-BAM-HC FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE FIRST AMENDED PETITION (Docs. 23, 14) FINDINGS AND RECOMMENDATIONS TO DISMISS THE FIRST AMENDED PETITION FOR LACK OF SUBJECT MATTER JURISDICTION (Doc. 14), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE 16 OBJECTIONS DEADLINE: THIRTY (30) DAYS 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. The matter has been referred to the 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 22 Rules 302 and 304. Pending before the Court is the Respondent’s 23 motion to dismiss the first amended petition (FAP) as successive 24 and untimely. The motion was filed on October 25, 2011, with 25 supporting documentation. Petitioner filed opposition on 26 November 9, 2011, and Respondent filed a reply with additional 27 documentation on November 29, 2011. 28 1 Dockets.Justia.com 1 I. 2 Respondent has filed a motion to dismiss the petition on the 3 grounds that the petition is successive and that Petitioner filed 4 his petition outside of the one-year limitation period provided 5 for by 28 U.S.C. § 2244(d)(1). 6 Proceeding by a Motion to Dismiss Rule 4 of the Rules Governing Section 2254 Cases in the 7 United States District Courts (Habeas Rules) allows a district 8 court to dismiss a petition if it “plainly appears from the face 9 of the petition and any exhibits annexed to it that the 10 11 petitioner is not entitled to relief in the district court....” The Ninth Circuit has allowed respondents to file motions to 12 dismiss pursuant to Rule 4 instead of answers if the motion to 13 dismiss attacks the pleadings by claiming that the petitioner has 14 failed to exhaust state remedies or has violated the state’s 15 procedural rules. 16 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 17 a petition for failure to exhaust state remedies); White v. 18 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 19 review a motion to dismiss for state procedural default); Hillery 20 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 21 Thus, a respondent may file a motion to dismiss after the Court 22 orders the respondent to respond, and the Court should use Rule 4 23 standards to review a motion to dismiss filed before a formal 24 answer. 25 See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n.12. Further, a federal court is a court of limited jurisdiction 26 which has a continuing duty to determine its own subject matter 27 jurisdiction and to dismiss an action where it appears that the 28 Court lacks jurisdiction. Fed. R. Civ. P. 12(h)(3); CSIBI v. 2 1 Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) (citing City of 2 Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); Billingsley v. 3 C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). 4 In this case, Respondent's motion to dismiss addresses the 5 untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1). 6 It also addresses whether the petition is successive, a 7 circumstance that would deprive the Court of subject matter 8 jurisdiction over the petition. 9 the motion are mainly to be found in copies of the official The material facts pertinent to 10 records of state and federal judicial proceedings which have been 11 provided by Respondent and Petitioner, and as to which there is 12 no factual dispute. 13 answer, and because Respondent's motion to dismiss is similar in 14 procedural standing to a motion to dismiss for failure to exhaust 15 state remedies or for state procedural default, the Court will 16 review Respondent’s motion to dismiss pursuant to its authority 17 under Rule 4. 18 II. 19 In the first amended petition presently pending before the Because Respondent has not filed a formal Background 20 Court, Petitioner challenges his 1995 conviction of possession of 21 a sharp instrument while in prison in violation of Cal. Pen. Code 22 § 4502 on the grounds of the ineffective assistance of counsel 23 and the state’s failure to disclose favorable evidence. 24 14, 1-21.) 25 (Doc. The Court takes judicial notice of the docket of this Court 26 in Carlos Herrera v. Roy A. Castro, case number 1:99-cv-05591-SMS 27 or CV F 99 5591 SMS P, which reflects that Petitioner filed a 28 previous petition for writ of habeas corpus in this Court on 3 1 April 28, 1999.1 2 challenged his 1995 conviction of possession of a sharp 3 instrument while confined in prison in violation of Cal. Pen. 4 Code § 4502 on the grounds of ineffective assistance of counsel, 5 vagueness of the statute defining the offense, and sentencing 6 error. 7 9, 2000, the petition was dismissed on the Respondent’s motion on 8 the ground that the petition was untimely because filed beyond 9 the statutory limitations period. 10 (Doc. 1.) In the petition, Petitioner (Ord. granting mot. to dismiss, doc. 28, 1-2.) (Id. at 4-10.) the Respondent was entered on June 14, 2000. On June Judgment for (Doc. 29.) 11 III. 12 Because the petition was filed after April 24, 1996, the Dismissal of the Petition as Successive 13 effective date of the Antiterrorism and Effective Death Penalty 14 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 15 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 16 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 17 Lindh Under the AEDPA, a federal court must dismiss a second or 18 successive petition that raises the same grounds as a prior 19 petition. 20 second or successive petition raising a new ground unless the 21 petitioner can show that 1) the claim rests on a new, 22 retroactive, constitutional right or 2) the factual basis of the 23 claim was not previously discoverable through due diligence, and 24 the new facts establish by clear and convincing evidence that but 28 U.S.C. § 2244(b)(1). The Court must also dismiss a 25 1 26 27 28 The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). The Court notes that the case number of the proceeding as reflected in the orders issued in the case, including the judgment entered on June 14, 2000, is CV F 99 5591 SMS P. (Doc. 29.) 4 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 dismissal of a federal habeas petition on the ground of 28 untimeliness is a determination “on the merits” for purposes of 5 A 1 the rule against successive petitions such that a further 2 petition challenging the same conviction is “second or 3 successive” for purposes of 28 U.S.C. § 2244(b). 4 Yates, 576 F.3d 1028, 1029-30 (9th Cir. 2009). 5 such a dismissal is a permanent and incurable bar to federal 6 review of the underlying claims. 7 McNabb v. This is because Id. at 1030. Here, the first petition concerning Petitioner’s conviction 8 was dismissed on the ground that it was untimely. 9 petition was adjudicated on the merits. 10 Thus, the Petitioner makes no showing that he has obtained prior leave 11 from the Ninth Circuit to file his successive petition attacking 12 the conviction. 13 that he could not have known of them earlier; thus, his petition 14 is not successive. 15 Appeals, and not this Court, to determine whether Petitioner 16 meets the requirements that would permit the filing of a second 17 petition. 18 Petitioner contends that his claims are new and However, it is for the Ninth Circuit Court of That being so, this court has no jurisdiction to consider 19 Petitioner’s renewed application for relief from that conviction 20 under section 2254 and must dismiss the petition. 21 Turpin, 518 U.S. 651, 656-57; Burton v. Stewart, 549 U.S. 147, 22 152; Cooper v. Calderon, 274 F.3d 1270, 1274. 23 desires to proceed in bringing this petition for writ of habeas 24 corpus, he must file for leave to do so with the Ninth Circuit. 25 See 28 U.S.C. § 2244(b)(3). 26 27 28 See, Felker v. If Petitioner Accordingly, it will be recommended that the motion to dismiss the petition as successive be granted. Further, because this Court lacks subject matter 6 1 jurisdiction over the petition, the Court will not consider 2 Respondent’s additional ground for the motion to dismiss, namely, 3 that the petition is untimely. 4 IV. 5 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 6 appealability, an appeal may not be taken to the Court of Appeals 7 from the final order in a habeas proceeding in which the 8 detention complained of arises out of process issued by a state 9 court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 10 U.S. 322, 336 (2003). 11 only if the applicant makes a substantial showing of the denial 12 of a constitutional right. 13 standard, a petitioner must show that reasonable jurists could 14 debate whether the petition should have been resolved in a 15 different manner or that the issues presented were adequate to 16 deserve encouragement to proceed further. 17 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 18 (2000)). 19 jurists of reason would find it debatable whether the petition 20 states a valid claim of the denial of a constitutional right and 21 that jurists of reason would find it debatable whether the 22 district court was correct in any procedural ruling. 23 McDaniel, 529 U.S. 473, 483-84 (2000). 24 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 25 the claims in the habeas petition, generally assesses their 26 merits, and determines whether the resolution was wrong or 27 debatable among jurists of reason. 28 U.S. at 336-37. Miller-El v. Cockrell, 537 It is necessary for an applicant to show more 7 1 than an absence of frivolity or the existence of mere good faith; 2 however, it is not necessary for an applicant to show that the 3 appeal will succeed. Id. at 338. 4 A district court must issue or deny a certificate of 5 appealability when it enters a final order adverse to the 6 applicant. 7 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, Petitioner has not demonstrated that jurists of reason 8 would find it debatable whether or not the petition states a 9 valid claim of the denial of a constitutional right. Further, 10 Petitioner has not shown that jurists of reason would find it 11 debatable whether the petition is successive. 12 made the substantial showing required for issuance of a 13 certificate of appealability. 14 15 Petitioner has not Therefore, it will be recommended that the Court decline to issue a certificate of appealability. 16 V. 17 Accordingly, it is RECOMMENDED that: 18 1) 19 20 Recommendations Respondent’s motion to dismiss the petition as successive be GRANTED; and 2) The petition for writ of habeas corpus be DISMISSED 21 because the Court lacks subject matter jurisdiction over the 22 petition; and 23 3) 24 25 26 The Court DECLINE to issue a certificate of appealability; and 4) The Clerk be DIRECTED to close this action because the dismissal will terminate the action in its entirety. 27 These findings and recommendations are submitted to the 28 United States District Court Judge assigned to the case, pursuant 8 1 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 2 the Local Rules of Practice for the United States District Court, 3 Eastern District of California. 4 being served with a copy, any party may file written objections 5 with the Court and serve a copy on all parties. 6 should be captioned “Objections to Magistrate Judge’s Findings 7 and Recommendations.” 8 and filed within fourteen (14) days (plus three (3) days if 9 served by mail) after service of the objections. Within thirty (30) days after Such a document Replies to the objections shall be served The Court will 10 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 11 § 636 (b)(1)(C). 12 objections within the specified time may waive the right to 13 appeal the District Court’s order. 14 1153 (9th Cir. 1991). 15 16 The parties are advised that failure to file Martinez v. Ylst, 951 F.2d IT IS SO ORDERED. Dated: 10c20k December 23, 2011 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 9