Torres-Hurtado v. Gill

Filing 10

ORDER GRANTING Respondent's 9 Motion to Dismiss Petition for Writ of Habeas Corpus as Successive; ORDER DISMISSING Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of the Court to Enter Judgment and Close File; NO Certificate of Appealability is Required, signed by Magistrate Judge Jennifer L. Thurston on 05/14/14. CASE CLOSED(Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JOSE TORRES-HURTADO,
Petitioner,

12
13

v.

14

A. GILL,

15
16
17
18
19

Respondent.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:14-cv-00145-JLT
ORDER GRANTING RESPONDENT’S MOTION
TO DISMISS PETITION FOR WRIT OF HABEAS
CORPUS AS SUCCESSIVE (Doc. 9)
ORDER DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS (Doc. 1)
ORDER DIRECTING CLERK OF THE COURT TO
ENTER JUDGMENT AND CLOSE FILE
NO CERTIFICATE OF APPEALABILITY IS
REQUIRED

20
21

Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of habeas

22

corpus pursuant to 28 U.S.C. § 2241. Both parties have filed their written consent to the jurisdiction

23

of the Magistrate Judge for all purposes. (Docs. 7 & 8).

24
25

PROCEDURAL HISTORY
The instant petition was filed on February 4, 2014. (Doc. 1). On February 7, 2014, the Court

26

ordered Respondent to file a response. (Doc. 5). On April 8, 2014, Respondent filed the instant

27

motion to dismiss, contending that the petition is successive and should therefore be dismissed. (Doc.

28

9). To date, Petitioner has not filed an opposition to the motion to dismiss.
1

DISCUSSION

1
2

A. Procedural Grounds for Motion to Dismiss

3

As mentioned, Respondent has filed a Motion to Dismiss the petition as being successive.

4

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it

5

“plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not

6

entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.

7

The Ninth Circuit has allowed Respondent’s to file a Motion to Dismiss in lieu of an Answer if

8

the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state’s

9

procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to

10

evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d

11

599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state

12

procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus,

13

a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use

14

Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.

15

In this case, Responden’'s motion to dismiss is based upon a claim that the petition is

16

successive and violates the “abuse of the writ” doctrine. Because Respondent's motion to dismiss is

17

similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state

18

procedural default and Respondent has not yet filed a formal Answer, the Court will review

19

Respondent’s motion to dismiss pursuant to its authority under Rule 4.

20

B. Successive Petitions.

21

Section 2244(a) provides as follows:

22

No circuit or district judge shall be required to entertain an application for a writ of habeas
corpus to inquire into the detention of a person pursuant to a judgment of a court of the United
States if it appears that the legality of such detention has been determined by a judge or court
of the United States on a prior application for a writ of habeas corpus, except as provided in
section 2255.

23
24
25
26

This gate-keeping provision confers exclusive authority on the Court of Appeals to authorize

27

successive petitions regarding state court judgments pursuant to 28 U.S.C. § 2254. 28 U.S.C. §

28

2244(b). However, the provisions requiring prior appellate permission to proceed with a successive
2

1

petition pertain expressly to claims presented under § 2254, and contain no reference to petitions filed

2

under § 2241. Thus, the gate-keeping provisions do not apply to habeas petitions filed under § 2241.

3

Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir.2000).
Nevertheless, § 2244(a) prevents a federal inmate from utilizing § 2241 to challenge the

4
5

validity of a federal court conviction or sentence which has previously been presented to the federal

6

court for determination, such as when challenged by way of federal collateral review. Id.; accord,

7

Valona v. United States, 138 F.3d 693, 694–695 (9th Cir.1998) (concluding that § 2244(a) bars

8

successive petitions under § 2241 directed to the same issue concerning execution of a sentence);

9

Chambers v. United States, 106 F.3d 472, 475 (2d Cir.1997) (barring as a second § 2241 petition a

10

repetitive challenge to application of time credits in the administrative calculation of a federal

11

sentence).
AEDPA's bar against successive petitions has been referred to as a modified res judicata rule

12
13

placing limits on the traditional habeas corpus rule against “abuse of the writ,” a “complex and

14

evolving body of equitable principles informed and controlled by historical usage, statutory

15

developments, and judicial decisions.” Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333 (1996)

16

(citing McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454 (1991). If a successive petition is filed,

17

dismissal is the appropriate disposition. Queen v. Miner, 550 F.3d 253, 255 (3d Cir.2008); Chambers

18

v. United States, 106 F.3d 472, 475 (2d Cir.1997).
In the instant petition, Petitioner challenges the failure of the Bureau of Prisons to award him

19
20

all of the credits to which he claims he is entitled. He bases his claim on two separate federal

21

convictions and sentences, imposed at different times, but which were ordered to be served

22

concurrently by the latter sentencing court. However, Petitioner presented this identical claim to the

23

United States District Court for the Northern District of West Virginia, in Jose Torres-Hurtado v.

24

Warden Kuma Deboo, case number 2:10cv8, which the court reviewed on its merits and denied with

25

prejudice on May 3, 2010. (Doc. 9, Ex. 5).1 Accordingly, the instant petition for writ of habeas

26
27
28

1

The court may take notice of facts that are capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th
Cir. 1993). The docket and proceedings of sister federal district courts are facts that are subject to judicial notice under

3

1

corpus must be dismissed with prejudice as successive.
ORDER

2
3

Accordingly, it is HEREBY ORDERED as follows:

4

1. Respondent’s motion to dismiss (Doc. 9), is GRANTED;

5

2. The Petition for Writ of Habeas Corpus (Doc. 1), is DISMISSED with prejudice as
successive;

6
7

3. The Clerk of the Court is DIRECTED to enter judgment and close the file; and,

8

4. No certificate of appealability is required.

9
10
11
12

IT IS SO ORDERED.
Dated:

May 14, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Rule 201(b). Accordingly, the Court hereby takes judicial notice of the docket and proceedings of Torres-Hurtado v.
Deboo, no. 2:10cv8, in the U.S. District Court, Northern District of West Virginia.

4