Dews v. Biter

Filing 7

FINDINGS and RECOMMENDATIONS to Dismiss the Petition 1 ; FINDINGS AND RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 5/3/13: OBJECTIONS DEADLINE: THIRTY (30) DAYS. (Hellings, J)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CLARENCE LEON DEWS,
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Petitioner,
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v.
MARTIN BITER, Warden of Kern
Valley State Prison,

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Respondent.
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1:13-cv—00626–AWI-SKO-HC
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION (Doc. 1)
FINDINGS AND RECOMMENDATIONS TO
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY AND TO DIRECT THE
CLERK TO CLOSE THE CASE
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a state prisoner proceeding pro se and in

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forma pauperis with a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254.

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Petitioner has consented to the jurisdiction of the United States

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Magistrate Judge to conduct all further proceedings in the case,

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including the entry of final judgment, by manifesting consent in

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a signed writing filed by Petitioner on April 30, 2013 (doc. 3).

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Pending before the Court is the petition, which was filed on

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April 30, 2013.

Pursuant to 28 U.S.C. § 636(c)(1),

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I.

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Rule 4 of the Rules Governing § 2254 Cases in the United

Screening the Petition

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States District Courts (Habeas Rules) requires the Court to make

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a 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; the petition must state facts

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

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that point to a real possibility of constitutional error.

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4, Advisory Committee Notes, 1976 Adoption; O’Bremski v. Maass,

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915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75

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n.7 (1977)).

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conclusory, or palpably incredible are subject to summary

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dismissal.

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Rule

Allegations in a petition that are vague,

Hendricks v. Vasquez, 908 F.2d at 491.

The Court may dismiss a petition for writ of habeas corpus

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

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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).

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dismissed without leave to amend unless it appears that no

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tenable claim for relief can be pleaded were such leave granted.

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Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

Advisory Committee Notes to Habeas Rule

A petition for habeas corpus should not be

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II.

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Petitioner challenges his 2010 conviction in Fresno County

Background

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Superior Court case number F09906781 of receiving stolen property

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with enhancements in violation of Cal. Pen. Code §§ 496(a),
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667(b) through (i), and 1170.12(a) through (d).

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1-2.)

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pleading, discovery, the assistance of counsel, jury

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instructions, sentencing, and the sufficiency of the evidence of

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the value of the pertinent property.

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(Pet., doc. 1,

Petitioner raises issues concerning the accusatory

The Court takes judicial notice of the docket of this Court

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in Clarence Leon Dews v. Kern Valley State Prison, et al., case

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number 1:12-cv-00450-AWI-SKO-HC, which reflects that Petitioner

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filed a previous petition for writ of habeas corpus in this Court

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on March 12, 2012.1

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conviction he challenges in the instant proceeding.

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1 at 2, 35; doc. 1-1, 4; Findings and Rec. to Dismiss Pet., doc.

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22, 3:8-9.)

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ground that Petitioner’s allegations did not entitle him to

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relief in a proceeding pursuant to 28 U.S.C. § 2254.

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Rec., doc. 22, 9-14; Ord. Adopting Fdgs. and Rec., doc. 25, 1-3.)

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Judgment for the Respondent was entered on August 9, 2012.

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26.)

(Doc. 1.)

Petitioner challenged the same
(Pet., doc.

On August 9, 2012, the petition was dismissed on the

(Fdgs. and

(Doc.

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III.

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

Dismissal of the Petition as Successive

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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), reh. denied, 522 U.S. 1008

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(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

Lindh

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The Court may take judicial notice of court records. Fed. R. Evid.
201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993);
Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978),
aff’d, 645 F.2d 699 (9th Cir. 1981).

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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 fact finder would

28 U.S.C. § 2244(b)(1).

The Court must also dismiss a

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have found the applicant guilty of the underlying offense.

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U.S.C. § 2244(b)(2)(A)-(B).

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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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second or successive habeas corpus application under section 2254

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that was presented in a prior application unless the Court of

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Appeals has given Petitioner leave to file the petition.

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U.S.C. § 2244(b)(1).

Burton

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v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274

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F.3d 1270, 1274 (9th Cir. 2001).

In other words, a petitioner must obtain leave

See Felker v. Turpin, 518

This Court must dismiss any claim in a

This limitation is jurisdictional.

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A habeas petition is second or successive only if it raises

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claims that were or could have been adjudicated on the merits.

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McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).

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disposition is “on the merits” if the district court either

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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 at 1029 (citing Howard v. Lewis, 905

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F.2d 1318, 1322 (9th Cir. 1990)).

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state a claim pursuant to Fed. R. Civ. P. 12(b)(6) is a judgment

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A dismissal for failure to

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on the merits.

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394, 399 n.3 (1981).

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does not state a claim for habeas relief is a dismissal on the

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merits for the purpose of 28 U.S.C. § 2244.

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76 F.3d 820, 822-23 (7th Cir. 1996) (distinguishing between a

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dismissal for failure to state a claim and a dismissal because

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insufficient substantiation of a claim was provided); see,

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Williams v. Armontrout, 855 F.2d 578, 580 (8th Cir. 1988)

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(dismissal for legal insufficiency, or not stating facts

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constituting a violation of constitutional rights as a matter of

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law, is a decision on the merits); cf., Del Campo v. Kennedy, 491

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F.Supp.2d 891, 902 (N.D.Cal. 2006), aff’d., Del Campo v. Kennedy,

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517 F.3d 1070 (9th Cir. 2008) (citing Federated Dept. Stores,

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Inc. v. Moitie, 452 U.S. 394, 399 n. 3 (1981), and noting that

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historically, courts have considered a dismissal of a civil claim

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with prejudice for failure to state claim to be a dismissal on

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the merits for res judicata purposes); Arreola v. Board of Prison

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Hearings, 2012 WL 4862540, *2 (No. 2:11-cv-1974-DAD P, E.D.Cal.

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Oct. 11, 2012) (unpublished) (a Rule 60(b) motion to reconsider

Federated Dept. Stores, Inc. v. Moitie, 452 U.S.
A dismissal of a § 2254 petition because it

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Dellenbach v. Hanks,

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the dismissal of the petition for failure to state a cognizable

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claim is a decision on the merits which requires the petitioner

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to seek authority to proceed from the Court of Appeals for the

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Ninth Circuit); Harris v. Copenhaver, 2012 WL 2553635, *3 (No.

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1:12-cv-00938-AWI-DLB (HC), E.D.Cal. June 29, 2012) (unpublished)

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(a petition brought pursuant to § 2241 barred by § 2244(a) as

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successive because a previous petition including the same claim

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was dismissed for failure to state a cognizable claim).

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Here, the disposition of the first petition concerning the

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same state court decision constituted a decision on the merits.

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Petitioner makes no showing that he has obtained prior leave from

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the Ninth Circuit to file his successive petition attacking the

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conviction.

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Court, must determine whether Petitioner meets the requirements

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that would permit the filing of a second petition.

The Ninth Circuit Court of Appeals, and not this

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Accordingly, this court has no jurisdiction to consider

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Petitioner’s renewed application for relief from that conviction

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under section 2254 and must dismiss the petition.

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Turpin, 518 U.S. 651, 656-57; Burton v. Stewart, 549 U.S. 147,

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152; Cooper v. Calderon, 274 F.3d 1270, 1274.

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desires to bring this petition for writ of habeas corpus, he must

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file for leave to do so with the Ninth Circuit.

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2244(b)(3).

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for writ of habeas corpus be dismissed as a successive petition.

See, Felker v.

If Petitioner

See 28 U.S.C. §

Therefore, it will be recommended that the petition

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IV.

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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).

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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.

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,

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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 or

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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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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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absence of frivolity or the existence of mere good faith, it is

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not necessary for an applicant to show that the appeal will

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succeed.

Miller-El v. Cockrell, 537

Although an applicant must show more than an

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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Here, Petitioner has not demonstrated that jurists of reason

Rule 11(a) of the Rules Governing Section 2254 Cases.

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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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Petitioner has not shown that jurists of reason would find it

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debatable whether the petition is successive.

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Further,

Petitioner has not made the substantial showing required for

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issuance of a certificate of appealability. As such, it will be

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recommended that the Court decline to issue a certificate of

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appealability.

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V.

Recommendations

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Accordingly, it is RECOMMENDED that:

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1)

The petition for writ of habeas corpus be DISMISSED

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because the Court lacks subject matter jurisdiction over the

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petition; and

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2)

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The Court DECLINE to issue a certificate of

appealability; and
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The Clerk be DIRECTED to close this action because the

dismissal will terminate the action in its entirety.

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These findings and recommendations are submitted to the

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United States District Court Judge assigned to the case, pursuant

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to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of

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the Local Rules of Practice for the United States District Court,

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Eastern District of California.

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being served with a copy, any party may file written objections

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with the Court and serve a copy on all parties.

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should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.”

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and filed within fourteen (14) days (plus three (3) days if

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served by mail) after service of the objections.

Within thirty (30) days after

Such a document

Replies to the objections shall be served

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The Court will

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then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.

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§ 636 (b)(1)(C).

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objections within the specified time may waive the right to

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appeal the District Court’s order.

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1153 (9th Cir. 1991).

The parties are advised that failure to file

Martinez v. Ylst, 951 F.2d

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IT IS SO ORDERED.

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Dated:
ie14hj

May 3, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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