-GSA (HC) Frank v. Lopez, No. 1:2011cv01175 - Document 5 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 8/2/2011 recommending that Ground One be Dismissed from 1 Petition for Writ of Habeas Corpus. Referred to Judge Anthony W. Ishii; Objections to F&R due by 9/6/2011. (Lundstrom, T)

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-GSA (HC) Frank v. Lopez Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 KENNETH A. FRANK, ) ) ) ) ) ) ) ) ) ) ) 11 Petitioner, 12 13 v. 14 JAMES A. YATES, Warden, 15 Respondent. 16 1:11-CV-01175 AWI GSA HC FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS ) 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 On July 15, 2011, Petitioner filed the instant petition for writ of habeas corpus in this Court. 20 He challenges his 1989 convictions out of Kern County Superior Court. 21 DISCUSSION 22 A. Preliminary Review of Petition 23 Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: 24 If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. 25 26 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 27 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 28 U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th 2 Cir.2001). A petition for habeas corpus should not be dismissed without leave to amend unless it 3 appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 4 440 F.2d 13, 14 (9th Cir. 1971). 5 B. Successive Claim 6 In the instant petition in his first claim for relief, Petitioner alleges the Kern County Superior 7 Court committed prejudicial error when it destroyed the court reporter’s notes of Petitioner’s jury 8 trial without complying with relevant California statutes. This claim was raised in a prior federal 9 petition in this Court where it was dismissed for failure to state a cognizable federal claim. 10 See Frank v. Yates, Case No. 1:10-CV-1212 GSA HC. It is therefore successive and must be 11 dismissed. See 28 U.S.C. § 2244(b)(1). 12 RECOMMENDATION 13 14 Accordingly, IT IS HEREBY RECOMMENDED that Ground One be DISMISSED from the petition as successive. 15 This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United 16 States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 17 the Local Rules of Practice for the United States District Court, Eastern District of California. 18 Within thirty (30) days of the date of service of this Findings and Recommendation, Petitioner may 19 file written objections with the Court. Such a document should be captioned “Objections to 20 Magistrate Judge’s Findings and Recommendations.” The District Court will then review the 21 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to 22 file objections within the specified time may waive the right to appeal the District Court’s order. 23 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 25 IT IS SO ORDERED. 26 Dated: 6i0kij August 2, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28 U .S. D istrict C ourt E. D . C alifornia cd 2

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