(HC) Brownlee v. Spearman, No. 1:2016cv00244 - Document 6 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of Petition for Writ of Habeas Corpus, signed by Magistrate Judge Stanley A. Boone on 3/3/16. Objections to F&R Due Within Thirt Days. (Marrujo, C)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 TERRENCE BROWNLEE, 10 Case No. 1:16-cv-00244-SAB-HC Petitioner, 11 FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS v. 12 M.E. SPEARMAN, 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 17 pursuant to 28 U.S.C. § 2254. 18 I. 19 BACKGROUND On July 7, 1980, Petitioner pleaded guilty to second-degree murder (count 1) and robbery 20 21 (count 2) in the Fresno County Superior Court. He also admitted to firearm enhancements as to 1 22 both counts. (ECF No. 1 at 76). On August 4, 1980, Petitioner was sentenced on count 1 to a 23 term of imprisonment of fifteen years to life with the two-year firearm enhancement to run 24 consecutively. The sentence on count 2 was stayed. (Id.). On March 15, 2013, the minute order of the August 4, 1980 sentencing hearing was 25 26 corrected to reflect that Petitioner was sentenced on count 1 to fifteen years to life plus two years 27 for the firearm enhancement, and that the sentence on count 2 and its enhancement were stayed. 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 1 1 (ECF No. 1 at 76). That same day, an amended abstract of judgment was filed, which purported 2 to reflect the same. However, with respect to the sentence on count 1, the amended abstract had 3 both of the following boxes checked: “LIFE WITHOUT THE POSSIBILITY OF PAROLE on 4 count[] 1” and “15 years to Life on count[]1.” (Id.). 5 Thereafter, Petitioner filed a petition for writ of coram nobis in the state trial court, which 6 was denied on April 10, 2014. Petitioner filed a notice of appeal on April 21, 2014. (ECF No. 1 7 at 77). The California Court of Appeal, Fifth Appellate District dismissed the appeal on 8 November 18, 2015, but directed the trial court to issue an amended abstract of judgment that 9 reflects Petitioner’s sentence on count 1 as fifteen years to life. (Id. at 78). 10 On February 22, 2016, Petitioner filed the instant petition for writ of habeas corpus 11 wherein he challenges the sentence imposed on August 4, 1980. (ECF No. 1). Petitioner contends 12 that he did not plea to a life sentence and that he has been denied due process of law since the 13 records and transcript of his plea hearing have been destroyed. 14 II. 15 DISCUSSION 16 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 17 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 18 to file a response, if it “plainly appears from the petition and any attached exhibits that the 19 petitioner is not entitled to relief in the district court.” A federal court must dismiss a second or 20 successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The 21 court must also dismiss a second or successive petition raising a new ground unless the petitioner 22 can show that (1) the claim rests on a new, retroactive, constitutional right or (2) the factual basis 23 of the claim was not previously discoverable through due diligence, and these new facts establish 24 by clear and convincing evidence that but for the constitutional error, no reasonable factfinder 25 would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)–(B). 26 However, it is not the district court that decides whether a second or successive petition 27 meets these requirements. Section 2244(b)(3)(A) provides: “Before a second or successive 28 application permitted by this section is filed in the district court, the applicant shall move in the 2 1 appropriate court of appeals for an order authorizing the district court to consider the 2 application.” In other words, Petitioner must obtain leave from the Ninth Circuit before he can 3 file a second or successive petition in the district court. See Felker v. Turpin, 518 U.S. 651, 656– 4 657 (1996). This Court must dismiss any second or successive petition unless the Court of 5 Appeals has given Petitioner leave to file the petition because a district court lacks subject-matter 6 jurisdiction over a second or successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). In the instant petition, Petitioner challenges his sentence that was imposed on August 4, 7 8 1980. Petitioner has filed multiple federal habeas petitions in this Court challenging the same 9 sentence. See Brownlee v. Pliler, No. 1:01-cv-06120-OWW-SMS (dismissed as untimely); 10 Brownlee v. Kane, No. 1:05-cv-00949-OWW-SMS (dismissed as unauthorized successive 11 petition); Brownlee v. Kramer, No. 1:06-cv-00320-OWW-SMS (same); Brown Lee v. Felker, 12 No. 1:09-00765-OWW-SMS (same); Brownlee v. Rommoro, No. 1:14-cv-01990-LJO-SAB 13 (same); Brownlee v. Nackley, No. 1:16-cv-00125-LJO-MJS (findings and recommendation 14 recommending dismissal as unauthorized successive petition).2 A second-in-time habeas petition filed after a new, intervening judgment is not “second 15 16 or successive” under § 2244(b) even though it challenges portions unchanged from the original 17 judgment. Wentzell v. Neven, 674 F.3d 1124, 1126–28 (9th Cir. 2013). Here, on November 18, 18 2015, the California Court of Appeal, Fifth Appellate District ordered the trial court “to issue an 19 amended abstract of judgment that reflects defendant’s sentence on count 1 as 15 years to life 20 (not life without the possibility of parole).” (ECF No. 1 at 78). However, the Ninth Circuit has 21 recognized that “an amendment to an abstract of judgment is a clerical change in California, not 22 a new judgment.” Johnson v. Duffy, 591 F. App’x 629, 629–30 (9th Cir. 2015) (citing People v. 23 Mitchell, 26 Cal.4th 181, 185 (2001) (“An abstract of judgment is not the judgment of 24 conviction; it does not control if different from the trial court’s oral judgment and may not add to 25 or modify the judgment it purports to digest or summarize.”)). Accordingly, the Court finds that the instant petition is “second or successive” under 26 27 2 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 28 (9th Cir. 1980). 3 1 § 2244(b), and Petitioner makes no showing that he has obtained prior leave from the Ninth 2 Circuit to file this petition. Petitioner previously filed multiple federal habeas petitions in this 3 Court challenging the sentence imposed on August 4, 1980, which were dismissed as untimely or 4 successive. As Petitioner has not obtained prior leave from the Ninth Circuit to file this 5 successive petition, this Court has no jurisdiction to consider Petitioner’s renewed application for 6 relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 U.S. at 157. 7 III. 8 RECOMMENDATION AND ORDER Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas 9 10 corpus be DISMISSED as successive. Further, the Court DIRECTS the Clerk of Court to assign 11 a District Court Judge to the present matter. This Findings and Recommendation is submitted to the United States District Court 12 13 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 14 of the Local Rules of Practice for the United States District Court, Eastern District of California. 15 Within THIRTY (30) days after service of the Findings and Recommendation, Petitioner may 16 file written objections with the Court and serve a copy on all parties. Such a document should be 17 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 18 District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 19 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may 20 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 21 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 IT IS SO ORDERED. 24 Dated: March 3, 2016 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 4
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