Wilhelm v. Davis

Filing 8

ORDER Dismissing Petition for Writ of Habeas Corpus; ORDER Directing Clerk of Court to Enter Judgment and Close Case; ORDER Declining Issuance of Certificate of Appealability, signed by Magistrate Judge Stanley A. Boone on 12/5/14. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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STEVEN HAIRL WILHELM,

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Case No. 1:14-cv-001776-SAB-HC

Petitioner,

ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS

v.
ORDER DIRECTING CLERK OF COURT
TO ENTER JUDGMENT AND CLOSE
CASE

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RON DAVIS,
ORDER DECLINING ISSUANCE OF
CERTIFICATE OF APPEALABILITY

Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

19 pursuant to 28 U.S.C. § 2254. He has consented to the jurisdiction of the Magistrate Judge
20 pursuant to 28 U.S.C. § 636(c).
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In the petition filed on November 6, 2014, Petitioner challenges his 1999 conviction

22 sustained in Fresno County Superior Court for four counts of lewd and lascivious acts upon two
23 children under the age of 14 (Cal. Penal Code § 288(a)), two counts of lewd and lascivious
24 conduct by force with a child under the age of 14 (Cal. Penal Code § 288(b)), and five counts of
25 employment or use of a minor to perform prohibited sexual acts (Cal. Penal Code § 311.4(c)). A
26 review of the Court’s dockets and files shows Petitioner has previously sought federal habeas
27 relief with respect to this conviction in Wilhelm v. Roe, Case No. 1:01-cv-06490-DLB-HC. In
28 that case, the petition was denied on the merits. Petitioner appealed the denial to the Ninth

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1 Circuit Court of Appeals, and the appeal was denied on October 19, 2006.
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I.

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DISCUSSION

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A federal court must dismiss a second or successive petition that raises the same grounds

5 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive
6 petition raising a new ground unless the petitioner can show that 1) the claim rests on a new,
7 retroactive, constitutional right or 2) the factual basis of the claim was not previously
8 discoverable through due diligence, and these new facts establish by clear and convincing
9 evidence that but for the constitutional error, no reasonable factfinder would have found the
10 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the
11 district court that decides whether a second or successive petition meets these requirements.
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Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by

13 this section is filed in the district court, the applicant shall move in the appropriate court of
14 appeals for an order authorizing the district court to consider the application." In other words,
15 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive
16 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must
17 dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave
18 to file the petition because a district court lacks subject-matter jurisdiction over a second or
19 successive petition. Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v.
20 Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 (1997).
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Because the current petition was filed after April 24, 1996, the provisions of the

22 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current
23 petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that he has
24 obtained prior leave from the Ninth Circuit to file his successive petition attacking the
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That being so, this Court has no jurisdiction to consider Petitioner's renewed

26 application for relief from that conviction under Section 2254 and must dismiss the petition. See
27 Greenawalt, 105 F.3d at 1277.
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III.

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CERTIFICATE OF APPEALABILITY

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A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district

4 court’s denial of his petition, and an appeal is only allowed in certain circumstances. See Miller5 El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to
6 issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:
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(a) In a habeas corpus proceeding or a proceeding under section 2255 before a
district judge, the final order shall be subject to review, on appeal, by the court
of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the
validity of a warrant to remove to another district or place for commitment or trial
a person charged with a criminal offense against the United States, or to test the
validity of such person’s detention pending removal proceedings.
(c)

(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from–

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(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
court; or

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(B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional
right.

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(3) The certificate of appealability under paragraph (1) shall indicate
which specific issue or issues satisfy the showing required by paragraph
(2).

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If a court denies a petitioner’s petition, the court may only issue a certificate of

21 appealability “if jurists of reason could disagree with the district court’s resolution of his
22 constitutional claims or that jurists could conclude the issues presented are adequate to deserve
23 encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S.
24 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must
25 demonstrate “something more than the absence of frivolity or the existence of mere good faith on
26 his . . . part.” Miller-El, 537 U.S. at 338.
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In the present case, the Court finds that reasonable jurists would not find the Court’s

28 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or

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1 deserving of encouragement to proceed further. Petitioner has not made the required substantial
2 showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to
3 issue a certificate of appealability.
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IV.

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ORDER

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Accordingly, IT IS HEREBY ORDERED:

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1) The petition for writ of habeas corpus is DISMISSED as successive;

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2) The Clerk of Court is DIRECTED to enter judgment and terminate the case; and

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3) The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.

12 Dated:

December 5, 2014
UNITED STATES MAGISTRATE JUDGE

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