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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 CLARENCE LEON DEWS, 9 Petitioner, 10 11 12 v. MARTIN BITER, Warden of Kern Valley State Prison, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) ) 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 15 16 Petitioner is a state prisoner proceeding pro se and in 17 forma pauperis with a petition for writ of habeas corpus pursuant 18 to 28 U.S.C. § 2254. 19 Petitioner has consented to the jurisdiction of the United States 20 Magistrate Judge to conduct all further proceedings in the case, 21 including the entry of final judgment, by manifesting consent in 22 a signed writing filed by Petitioner on April 30, 2013 (doc. 3). 23 Pending before the Court is the petition, which was filed on 24 April 30, 2013. Pursuant to 28 U.S.C. § 636(c)(1), 25 I. 26 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 27 States District Courts (Habeas Rules) requires the Court to make 28 a preliminary review of each petition for writ of habeas corpus. 1 1 The Court must summarily dismiss a petition "[i]f it plainly 2 appears from the petition and any attached exhibits that the 3 petitioner is not entitled to relief in the district court....” 4 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 5 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 6 1990). 7 grounds of relief available to the Petitioner; 2) state the facts 8 supporting each ground; and 3) state the relief requested. 9 Notice pleading is not sufficient; the petition must state facts Habeas Rule 2(c) requires that a petition 1) specify all 10 that point to a real possibility of constitutional error. 11 4, Advisory Committee Notes, 1976 Adoption; O’Bremski v. Maass, 12 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 13 n.7 (1977)). 14 conclusory, or palpably incredible are subject to summary 15 dismissal. 16 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 17 either on its own motion under Habeas Rule 4, pursuant to the 18 respondent's motion to dismiss, or after an answer to the 19 petition has been filed. 20 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 21 (9th Cir. 2001). 22 dismissed without leave to amend unless it appears that no 23 tenable claim for relief can be pleaded were such leave granted. 24 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 25 II. 26 Petitioner challenges his 2010 conviction in Fresno County Background 27 Superior Court case number F09906781 of receiving stolen property 28 with enhancements in violation of Cal. Pen. Code §§ 496(a), 2 1 667(b) through (i), and 1170.12(a) through (d). 2 1-2.) 3 pleading, discovery, the assistance of counsel, jury 4 instructions, sentencing, and the sufficiency of the evidence of 5 the value of the pertinent property. 6 (Pet., doc. 1, Petitioner raises issues concerning the accusatory The Court takes judicial notice of the docket of this Court 7 in Clarence Leon Dews v. Kern Valley State Prison, et al., case 8 number 1:12-cv-00450-AWI-SKO-HC, which reflects that Petitioner 9 filed a previous petition for writ of habeas corpus in this Court 10 on March 12, 2012.1 11 conviction he challenges in the instant proceeding. 12 1 at 2, 35; doc. 1-1, 4; Findings and Rec. to Dismiss Pet., doc. 13 22, 3:8-9.) 14 ground that Petitioner’s allegations did not entitle him to 15 relief in a proceeding pursuant to 28 U.S.C. § 2254. 16 Rec., doc. 22, 9-14; Ord. Adopting Fdgs. and Rec., doc. 25, 1-3.) 17 Judgment for the Respondent was entered on August 9, 2012. 18 26.) (Doc. 1.) Petitioner challenged the same (Pet., doc. On August 9, 2012, the petition was dismissed on the (Fdgs. and (Doc. 19 III. 20 Because the petition was filed after April 24, 1996, the Dismissal of the Petition as Successive 21 effective date of the Antiterrorism and Effective Death Penalty 22 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 23 v. Murphy, 521 U.S. 320, 327 (1997), reh. denied, 522 U.S. 1008 24 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). Lindh 25 26 27 28 1 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). 3 1 Under the AEDPA, a federal court must dismiss a second or 2 successive petition that raises the same grounds as a prior 3 petition. 4 second or successive petition raising a new ground unless the 5 petitioner can show that 1) the claim rests on a new, 6 retroactive, constitutional right or 2) the factual basis of the 7 claim was not previously discoverable through due diligence, and 8 the new facts establish by clear and convincing evidence that but 9 for the constitutional error, no reasonable fact finder would 28 U.S.C. § 2244(b)(1). The Court must also dismiss a 10 have found the applicant guilty of the underlying offense. 11 U.S.C. § 2244(b)(2)(A)-(B). 12 28 However, it is not the district court that decides whether a 13 second or successive petition meets these requirements, which 14 allow a petitioner to file a second or successive petition. 15 Section 2244(b)(3)(A) provides, “Before a second or successive 16 application permitted by this section is filed in the district 17 court, the applicant shall move in the appropriate court of 18 appeals for an order authorizing the district court to consider 19 the application.” 20 from the Ninth Circuit before he or she can file a second or 21 successive petition in district court. 22 U.S. 651, 656-657 (1996). 23 second or successive habeas corpus application under section 2254 24 that was presented in a prior application unless the Court of 25 Appeals has given Petitioner leave to file the petition. 28 26 U.S.C. § 2244(b)(1). Burton 27 v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 28 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. 4 1 A habeas petition is second or successive only if it raises 2 claims that were or could have been adjudicated on the merits. 3 McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). 4 disposition is “on the merits” if the district court either 5 considered and rejected the claim, or determined that the 6 underlying claim would not be considered by a federal court. 7 McNabb v. Yates, 576 F.3d at 1029 (citing Howard v. Lewis, 905 8 F.2d 1318, 1322 (9th Cir. 1990)). 9 state a claim pursuant to Fed. R. Civ. P. 12(b)(6) is a judgment A A dismissal for failure to 10 on the merits. 11 394, 399 n.3 (1981). 12 does not state a claim for habeas relief is a dismissal on the 13 merits for the purpose of 28 U.S.C. § 2244. 14 76 F.3d 820, 822-23 (7th Cir. 1996) (distinguishing between a 15 dismissal for failure to state a claim and a dismissal because 16 insufficient substantiation of a claim was provided); see, 17 Williams v. Armontrout, 855 F.2d 578, 580 (8th Cir. 1988) 18 (dismissal for legal insufficiency, or not stating facts 19 constituting a violation of constitutional rights as a matter of 20 law, is a decision on the merits); cf., Del Campo v. Kennedy, 491 21 F.Supp.2d 891, 902 (N.D.Cal. 2006), aff’d., Del Campo v. Kennedy, 22 517 F.3d 1070 (9th Cir. 2008) (citing Federated Dept. Stores, 23 Inc. v. Moitie, 452 U.S. 394, 399 n. 3 (1981), and noting that 24 historically, courts have considered a dismissal of a civil claim 25 with prejudice for failure to state claim to be a dismissal on 26 the merits for res judicata purposes); Arreola v. Board of Prison 27 Hearings, 2012 WL 4862540, *2 (No. 2:11-cv-1974-DAD P, E.D.Cal. 28 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 5 Dellenbach v. Hanks, 1 the dismissal of the petition for failure to state a cognizable 2 claim is a decision on the merits which requires the petitioner 3 to seek authority to proceed from the Court of Appeals for the 4 Ninth Circuit); Harris v. Copenhaver, 2012 WL 2553635, *3 (No. 5 1:12-cv-00938-AWI-DLB (HC), E.D.Cal. June 29, 2012) (unpublished) 6 (a petition brought pursuant to § 2241 barred by § 2244(a) as 7 successive because a previous petition including the same claim 8 was dismissed for failure to state a cognizable claim). 9 Here, the disposition of the first petition concerning the 10 same state court decision constituted a decision on the merits. 11 Petitioner makes no showing that he has obtained prior leave from 12 the Ninth Circuit to file his successive petition attacking the 13 conviction. 14 Court, must determine whether Petitioner meets the requirements 15 that would permit the filing of a second petition. The Ninth Circuit Court of Appeals, and not this 16 Accordingly, this court has no jurisdiction to consider 17 Petitioner’s renewed application for relief from that conviction 18 under section 2254 and must dismiss the petition. 19 Turpin, 518 U.S. 651, 656-57; Burton v. Stewart, 549 U.S. 147, 20 152; Cooper v. Calderon, 274 F.3d 1270, 1274. 21 desires to bring this petition for writ of habeas corpus, he must 22 file for leave to do so with the Ninth Circuit. 23 2244(b)(3). 24 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 25 IV. 26 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 27 appealability, an appeal may not be taken to the Court of Appeals 28 from the final order in a habeas proceeding in which the 6 1 detention complained of arises out of process issued by a state 2 court. 3 U.S. 322, 336 (2003). 4 only if the applicant makes a substantial showing of the denial 5 of a constitutional right. 6 standard, a petitioner must show that reasonable jurists could 7 debate whether the petition should have been resolved in a 8 different manner or that the issues presented were adequate to 9 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, 10 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 11 (2000)). 12 jurists of reason would find it debatable whether the petition 13 states a valid claim of the denial of a constitutional right or 14 that jurists of reason would find it debatable whether the 15 district court was correct in any procedural ruling. 16 McDaniel, 529 U.S. 473, 483-84 (2000). 17 A certificate should issue if the Petitioner shows that Slack v. In determining this issue, a court conducts an overview of 18 the claims in the habeas petition, generally assesses their 19 merits, and determines whether the resolution was wrong or 20 debatable among jurists of reason. 21 U.S. at 336-37. 22 absence of frivolity or the existence of mere good faith, it is 23 not necessary for an applicant to show that the appeal will 24 succeed. Miller-El v. Cockrell, 537 Although an applicant must show more than an Id. at 338. 25 A district court must issue or deny a certificate of 26 appealability when it enters a final order adverse to the 27 applicant. 28 Here, Petitioner has not demonstrated that jurists of reason Rule 11(a) of the Rules Governing Section 2254 Cases. 7 1 would find it debatable whether or not the petition states a 2 valid claim of the denial of a constitutional right. 3 Petitioner has not shown that jurists of reason would find it 4 debatable whether the petition is successive. 5 Further, Petitioner has not made the substantial showing required for 6 issuance of a certificate of appealability. As such, it will be 7 recommended that the Court decline to issue a certificate of 8 appealability. 9 V. Recommendations 10 Accordingly, it is RECOMMENDED that: 11 1) The petition for writ of habeas corpus be DISMISSED 12 because the Court lacks subject matter jurisdiction over the 13 petition; and 14 2) 15 16 17 The Court DECLINE to issue a certificate of appealability; and 3) The Clerk be DIRECTED to close this action because the dismissal will terminate the action in its entirety. 18 These findings and recommendations are submitted to the 19 United States District Court Judge assigned to the case, pursuant 20 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 21 the Local Rules of Practice for the United States District Court, 22 Eastern District of California. 23 being served with a copy, any party may file written objections 24 with the Court and serve a copy on all parties. 25 should be captioned “Objections to Magistrate Judge’s Findings 26 and Recommendations.” 27 and filed within fourteen (14) days (plus three (3) days if 28 served by mail) after service of the objections. Within thirty (30) days after Such a document Replies to the objections shall be served 8 The Court will 1 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 2 § 636 (b)(1)(C). 3 objections within the specified time may waive the right to 4 appeal the District Court’s order. 5 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 6 7 IT IS SO ORDERED. 8 Dated: ie14hj May 3, 2013 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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