Walker v. Dickinson

Filing 5

ORDER Dismissing the Petition as Successive Pursuant to 28 U.S.C. 2244(b) 1 ; ORDER Declining to Issue a Certificate of Appealability; ORDER Directing the Clerk to Close the Action, signed by Magistrate Judge Sheila K. Oberto on 5/9/11. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DENNIS WALKER,
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Petitioner,
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v.
KATHERINE DICKINSON,

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Respondent.

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1:11-cv—00560-SKO-HC
ORDER DISMISSING THE PETITION AS
SUCCESSIVE PURSUANT TO 28 U.S.C.
§ 2244(b) (Doc. 1)
ORDER 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), Petitioner has 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 a signed writing filed by
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Petitioner on April 27, 2011 (doc. 3).

Pending before the Court

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is the petition filed on April 5, 2011.
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I.

Screening the Petition

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Rule 4 of the Habeas Rules requires the Court to make a
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preliminary review of each petition for writ of habeas corpus.
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The Court must summarily dismiss a petition "[i]f it plainly

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appears from the petition and any attached exhibits that the

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petitioner is not entitled to relief in the district court....”

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Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.

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1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.

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1990).

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grounds of relief available to the Petitioner; 2) state the facts

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supporting each ground; and 3) state the relief requested.

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Notice pleading is not sufficient; rather, the petition must

Habeas Rule 2(c) requires that a petition 1) specify all

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state facts that point to a real possibility of constitutional

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error.

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O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.

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Allison, 431 U.S. 63, 75 n.7 (1977)).

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that are vague, conclusory, or palpably incredible are subject to

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summary dismissal.

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Cir. 1990).

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Rule 4, Advisory Committee Notes, 1976 Adoption;

Allegations in a petition

Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

Further, the Court may dismiss a petition for writ of habeas

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corpus either on its own motion under Habeas Rule 4, pursuant to

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the respondent's motion to dismiss, or after an answer to the

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petition has been filed.

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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43

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(9th Cir. 2001).

Advisory Committee Notes to Habeas Rule

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II.

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Petitioner alleges that he is an inmate of the California

Background

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Medical Facility at Vacaville, California, serving a sentence of

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twenty-five (25) years to life imposed by the Mariposa County

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Superior Court on April 2, 1992, pursuant to his conviction of

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two counts of first degree murder after entering a guilty plea.
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(Pet 1.)

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ground that he was misadvised of the consequences of his guilty

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plea, and he further challenges the trial court’s denial of an

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application for writ of habeas corpus.

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Petitioner seeks the reversal of his conviction on the

(Pet. 4-5, 31, 41.)

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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The Court may take judicial notice of court records.

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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.

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Fed. R.

On November 22, 2000, a habeas petition challenging

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Petitioner’s Mariposa County convictions was denied on the merits

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by this Court in Dennis Walker v. Steven Cambra, Jr., 1:98-cv-

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0516-OWW-LJO.

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on the merits and entered judgment for the respondent.

(Docs. 17, 20, 21.)

The Court denied the petition
(Id.)

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III. Successive Petition

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Because the instant petition was filed after April 24, 1996,

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the effective date of the Antiterrorism and Effective Death

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Penalty Act of 1996 (AEDPA), the AEDPA applies in this

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proceeding.

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denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004

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(9th Cir. 1999).

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Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert.

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,

28 U.S.C. § 2244(b)(1).

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The Court must also dismiss a

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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

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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)).
Here, the first petition concerning the Tulare 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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his successive petition attacking the convictions.

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so, this court has no jurisdiction to consider Petitioner’s

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renewed application for relief from the convictions under § 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.

Petitioner makes no showing

That being

See, Felker v. Turpin, 518 U.S.

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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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IV.

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Unless a circuit justice or judge issues a certificate of

If Petitioner desires to proceed

See 28 U.S.C.

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).

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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)).

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
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
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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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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.

Miller-El v. Cockrell, 537

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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;

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however, it is not necessary for an applicant to show that the

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appeal will succeed.

It is necessary for an applicant to show more

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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Therefore, the Court will decline to issue a certificate of
appealability.

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V. Disposition

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Accordingly, it is ORDERED that:

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1) The petition is DISMISSED as successive; and

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2) The Court DECLINES to issue a certificate of

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Petitioner

appealability; and
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3) The Clerk is DIRECTED to close this case because the
dismissal will terminate the action.

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IT IS SO ORDERED.

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Dated:
ie14hj

May 9, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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