(HC) Jones v. Duffy, No. 2:2013cv01096 - Document 3 (E.D. Cal. 2013)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 6/11/2013 ORDERING the Clerk shall assign a district judge to this matter; and RECOMMENDING that this action be dismissed without prejudice. Assigned and Referred to Judge Kimberly J. Mueller; Objections due within 28 days. (Yin, K)

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(HC) Jones v. Duffy Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIE RAY JONES, 12 Petitioner, 13 v. 14 DUFFY, 15 No. 2:13-cv-1096 AC P ORDER and FINDINGS AND RECOMMENDATIONS Respondent. 16 17 18 19 Petitioner is a state prisoner proceeding pro se on his petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of 25 years to life after a 2007 conviction for 20 assault with force likely to cause great bodily injury. He initially pled nolo contendre to a lesser 21 count in 2003, but then successfully argued to the state Court of Appeal that the plea had been 22 induced by misrepresentations. The Court of Appeal reversed and remanded the 2003 judgment, 23 and petitioner was re-tried and convicted in 2007. According to the petitioner, the parties agreed 24 in his original 2003 plea bargain that petitioner would serve a sentence of twelve years. Petitioner 25 appears to seek specific performance of that plea bargain now. 26 Petitioner has filed in this court at least two prior challenges to his 2007 conviction. The 27 first, Jones v. Haws, 2:09-cv-1735 MCE CHS, was denied on the merits in 2011. The second, 28 Jones v. Gipson, 2:11-cv-1190 CMK, was summarily dismissed as second or successive on May 1 Dockets.Justia.com 1 8, 2013. The instant petition was filed on May 31, 2013. 2 To the extent petitioner again seeks to raise a challenge to his 2007 conviction, he must 3 move in the United States Court of Appeals for the Ninth Circuit for an order authorizing the 4 district court to consider the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner's 5 application must be dismissed without prejudice to its re-filing upon obtaining authorization from 6 the United States Court of Appeals for the Ninth Circuit. 7 To the extent petitioner seeks to challenge his 2003 conviction and sentence, petitioner’s 8 challenge must fail. The 2003 judgment was reversed and remanded. Such a disposition leaves 9 nothing to challenge, because, under California law, the reversal placed the parties into the same 10 position as if the cause had never been tried. E.g., People v. Phillips, 75 Cal. App. 2d 381 (1969) 11 (defendant who obtains reversal subjects himself to retrial that may reach same result), cert. 12 denied, 396 U.S. 1021(1970); People v. Murphy, 59 Cal.2d 818 (1963); Oldum v. Duffy, 35 13 Cal.2d 562 (1950). Additionally, it is not clear how this court would have jurisdiction over such a 14 challenge, or how petitioner would be able to establish that he has a “personal stake” in the 15 outcome. See, e.g., Camreta v. Greene, 131 S.Ct. 2020 (2011) (petitioner must show that he has 16 suffered an injury in fact, caused by the conduct complained of, that will be redressed by a 17 favorable decision). 18 19 In accordance with the above, IT IS HEREBY ORDERED THAT the Clerk assign a district judge to this matter; and 20 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-eight 23 days after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 26 shall be served and filed within twenty-eight days after service of the objections. The parties are 27 //// 28 //// 2 1 advised that failure to file objections within the specified time may waive the right to appeal the 2 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: June 11, 2013 4 ` ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 AC:rb/jone1096.success 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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