Schmidt v. Evans
Filing
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ORDER GRANTING Respondent's 10 Motion to Dismiss the Petition; ORDER DISMISSING the Petition as Successive Pursuant to 28 U.S.C. 2244(b); DISMISSING Petitioner's 16 Motion for Evidentiary Hearing as Moot; DECLINING to Issue a Certificate of Appealability; ORDER DIRECTING the Clerk to Close the Action, signed by Magistrate Judge Sheila K. Oberto on 6/13/2011. CASE CLOSED. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STEVEN L. SCHMIDT,
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Petitioner,
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v.
M. EVANS, Warden,
Respondent.
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1:10-cv—00341-SKO-HC
ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS THE PETITION
(DOCS. 10, 1)
ORDER DISMISSING THE PETITION AS
SUCCESSIVE PURSUANT TO 28 U.S.C.
§ 2244(b) (Doc. 1),
DISMISSING PETITIONER’S MOTION
FOR EVIDENTIARY HEARING AS MOOT
(Doc. 16),
AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
ORDER DIRECTING THE CLERK TO
CLOSE THE ACTION
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Petitioner is a state prisoner proceeding pro se with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to
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the jurisdiction of the United States Magistrate Judge to conduct
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all further proceedings in the case, including the entry of final
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judgment, by manifesting consent in signed writings filed by
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Petitioner on March 8, 2010 (doc. 3), and on behalf of Respondent
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on December 10, 2010 (doc. 9).
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Respondent’s motion to dismiss the petition, which was filed on
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January 24, 2011.
Pending before the Court is
Petitioner filed an opposition to the motion
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on February 11, 2011.
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2011.
Respondent filed a reply on February 18,
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I.
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A federal court is a court of limited jurisdiction which has
Proceeding by a Motion to Dismiss
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a continuing duty to determine its own subject matter
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jurisdiction and to dismiss an action where it appears that the
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Court lacks jurisdiction.
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Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) (citing City of
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Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); Billingsley v.
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Fed. R. Civ. P. 12(h)(3); CSIBI v.
C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989).
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Respondent has filed a motion to dismiss the petition on the
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ground that this Court lacks subject matter jurisdiction over the
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petition because it is successive and thus is barred by 28 U.S.C.
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§ 2244.
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Rule 4 of the Rules Governing Section 2254 Cases in the
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District Courts (Habeas Rules) allows a district court to dismiss
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a petition if it “plainly appears from the face of the petition
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and any exhibits annexed to it that the petitioner is not
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entitled to relief in the district court....”
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The Ninth Circuit has allowed respondents to file motions to
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dismiss pursuant to Rule 4 instead of answers if the motion to
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dismiss attacks the pleadings by claiming that the petitioner has
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failed to exhaust state remedies or has violated the state’s
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procedural rules.
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420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss
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a petition for failure to exhaust state remedies); White v.
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Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to
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review a motion to dismiss for state procedural default); Hillery
See, e.g., O’Bremski v. Maass, 915 F.2d 418,
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v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).
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Thus, a respondent may file a motion to dismiss after the Court
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orders the respondent to respond, and the Court should use Rule 4
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standards to review a motion to dismiss filed before a formal
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answer.
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See, Hillery, 533 F. Supp. at 1194 & n.12.
Here, Respondent’s motion to dismiss is based on lack of
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subject matter jurisdiction.
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procedural posture to a motion to dismiss for failure to exhaust
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state remedies or for state procedural default.
Respondent’s motion is similar in
Further,
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although the motion is opposed, the motion does not raise
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material factual disputes.
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a formal answer.
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Finally, Respondent has not yet filed
The Court therefore exercises its discretion to review
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Respondent’s motion to dismiss pursuant to its authority under
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Rule 4.
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II.
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Petitioner alleges that he is serving a sentence of fifty-
Background
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five (55) years to life imposed by the Stanislaus County Superior
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Court upon Petitioner’s conviction on August 20, 1999, of
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attempted burglary with enhancements for prior convictions.
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(Pet. 1.)
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it was unauthorized, illegal, and violated Petitioner’s right to
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due process of law under the Fourteenth Amendment.
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argues that judicial error violated the protection against double
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jeopardy and his rights under the Equal Protection Clause, and
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the ineffective assistance of his trial and appellate counsel
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violated Petitioner’s Fifth and Fourteenth Amendment rights.
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(Pet. 5-6.)
Petitioner challenges his sentence on the ground that
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He further
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The Court may take judicial notice of court records.
Fed.
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R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333
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(9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626,
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635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981).
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The Court will take judicial notice of its own dockets and notes
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that the present petition is not the first petition filed with
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respect to the judgment pursuant to which Petitioner is detained.
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On March 24, 2006, a habeas petition challenging
Petitioner’s Stanislaus County conviction and sentence was denied
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on the merits by this Court in Schmidt v. Scribner, 03-cv-6124-
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AWI-DLB-HC.
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merits and entered judgment for the Respondent.
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24, 2; 25.)
(Docs. 22, 24)
The Court denied the petition on the
(Docs. 22, 24;
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III. Successive Petition
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Because the petition was filed after April 24, 1996, the
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effective date of the Antiterrorism and Effective Death Penalty
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Act of 1996 (AEDPA), the AEDPA applies in this proceeding.
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v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008
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(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
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Lindh
Under the AEDPA, a federal court must dismiss a second or
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successive petition that raises the same grounds as a prior
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petition.
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second or successive petition raising a new ground unless the
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petitioner can show that 1) the claim rests on a new,
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retroactive, constitutional right or 2) the factual basis of the
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claim was not previously discoverable through due diligence, and
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the new facts establish by clear and convincing evidence that but
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for the constitutional error, no reasonable factfinder would have
28 U.S.C. § 2244(b)(1).
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The Court must also dismiss a
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found the applicant guilty of the underlying offense.
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§ 2244(b)(2)(A)-(B).
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28 U.S.C.
However, it is not the district court that decides whether a
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second or successive petition meets these requirements, which
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allow a petitioner to file a second or successive petition.
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Section 2244(b)(3)(A) provides, “Before a second or successive
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application permitted by this section is filed in the district
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court, the applicant shall move in the appropriate court of
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appeals for an order authorizing the district court to consider
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the application.”
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from the Ninth Circuit before he or she can file a second or
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successive petition in district court.
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U.S. 651, 656-657 (1996).
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presented in a second or successive habeas corpus application
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under section 2254 that was presented in a prior application
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unless the Court of Appeals has given Petitioner leave to file
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the petition.
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characterized as jurisdictional.
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147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th
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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.
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A disposition is “on the merits” if the district court
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either considered and rejected the claim, or determined that the
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underlying claim would not be considered by a federal court.
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McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing
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Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990)).
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Here, the first petition concerning the Stanislaus County
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judgment was denied on the merits.
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that he has obtained prior leave from the Ninth Circuit to file
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Petitioner makes no showing
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his successive petition attacking the conviction.
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this court has no jurisdiction to consider Petitioner’s renewed
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application for relief from that conviction under section 2254
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and must dismiss the petition.
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651, 656-57; Burton v. Stewart, 549 U.S. 147, 152; Cooper v.
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Calderon, 274 F.3d 1270, 1274.
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in bringing this petition for writ of habeas corpus, he must file
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for leave to do so with the Ninth Circuit.
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§ 2244(b)(3).
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Accordingly,
See, Felker v. Turpin, 518 U.S.
If Petitioner desires to proceed
See 28 U.S.C.
Petitioner's reliance on Hill v. State of Alaska, 297 F.3d
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895 (9th Cir. 2002) does not aid him.
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sought permission from the Court of Appeals to file a successive
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petition to raise a claim concerning the calculation of a
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mandatory parole release date that could not have been included
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in earlier petitions challenging the same conviction and
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sentence.
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in the earlier petitions, the court permitted the parole claim to
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proceed.
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claim challenging the underlying conviction.
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897-99.
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In Hill, the petitioner
Because the parole claim could not have been included
However, it declined to grant permission to raise a
Hill, 297 F.3d at
Here, Petitioner challenges the same judgment that was the
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subject of his earlier petitions.
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the present challenges in an earlier petition.
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concludes that the petition must be dismissed as successive.
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Petitioner could have raised
The Court
Because the limitations of § 2244 are jurisdictional, the
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Court will not address Respondent’s additional argument that the
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petition should be dismissed because it was untimely.
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in light of the absence of subject matter jurisdiction in this
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Further,
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Court, Petitioner’s motion for an evidentiary hearing filed on
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March 3, 2011, will be dismissed as moot.
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V.
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Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
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appealability, an appeal may not be taken to the Court of Appeals
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from the final order in a habeas proceeding in which the
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detention complained of arises out of process issued by a state
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court.
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U.S. 322, 336 (2003).
28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue
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only if the applicant makes a substantial showing of the denial
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of a constitutional right.
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standard, a petitioner must show that reasonable jurists could
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debate whether the petition should have been resolved in a
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different manner or that the issues presented were adequate to
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deserve encouragement to proceed further.
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537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484
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(2000)).
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jurists of reason would find it debatable whether the petition
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states a valid claim of the denial of a constitutional right and
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that jurists of reason would find it debatable whether the
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district court was correct in any procedural ruling.
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McDaniel, 529 U.S. 473, 483-84 (2000).
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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
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the claims in the habeas petition, generally assesses their
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merits, and determines whether the resolution was wrong or
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debatable among jurists of reason.
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U.S. at 336-37.
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than an absence of frivolity or the existence of mere good faith;
Miller-El v. Cockrell, 537
It is necessary for an applicant to show more
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however, it is not necessary for an applicant to show that the
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appeal will succeed.
Id. at 338.
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A district court must issue or deny a certificate of
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appealability when it enters a final order adverse to the
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applicant.
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Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, Petitioner has not demonstrated that jurists of reason
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would find it debatable whether or not the petition states a
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valid claim of the denial of a constitutional right.
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has not made the substantial showing required for issuance of a
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certificate of appealability.
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Petitioner
Therefore, the Court will decline to issue a certificate of
appealability.
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VI. Disposition
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Accordingly, it is ORDERED that:
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1) The petition for writ of habeas corpus is DISMISSED as
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successive; and
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2) Petitioner’s motion for an evidentiary hearing is
DISMISSED as moot; and
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3) The Court DECLINES to issue a certificate of
appealability; and
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4) The Clerk is DIRECTED to close this action.
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IT IS SO ORDERED.
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Dated:
ie14hj
June 13, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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