Akili v. Matevousian

Filing 16

FINDINGS and RECOMMENDATIONS to Grant 11 Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus as Second and Successive; ORDER Directing that Objections be Filed Within Twenty-One Days, signed by Magistrate Judge Jennifer L. Thurston on 4/19/16. Referred to Judge Drozd. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MUNTU AKILI,
Petitioner,

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v.

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MATEVOUSIAN,
Respondent.

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Case No.: 1:15-cv-00476-JLT
FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT’S MOTION TO DISMISS
PETITION FOR WRIT OF HABEAS CORPUS AS
SECOND AND SUCCESSIVE (Doc. 11)
ORDER DIRECTING THAT OBJECTIONS BE
FILED WITHIN TWENTY-ONE DAYS

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Petitioner filed this action on March 26, 2015. (Doc. 1). A review of the Court’s docket

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reflects that Petitioner has previously filed a petition in this Court, in case no. 1:14-cv-00371-BAM,

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which raised virtually identical issues as the instant petition and that the Court dismissed the earlier

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matter on the merits on February 12, 2015. Subsequently, the Ninth Circuit denied a certificate of

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appealability on November 3, 2015.

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I.

DISCUSSION

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A. Procedural Grounds for Motion to Dismiss

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

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one year limitations period prescribed by Title 28 U.S.C. § 2244(d)(1). Rule 4 of the Rules Governing

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Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the face of

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the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court

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. . . .” Rule 4 of the Rules Governing Section 2254 Cases.
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The Ninth Circuit has allowed Respondent’s to file a Motion to Dismiss in lieu of an Answer if

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

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

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

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

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

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

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

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In this case, Respondent's Motion to Dismiss is based on the fact that the petition is successive

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and constitutes an abuse of the writ. Because Respondent's Motion to Dismiss is similar in procedural

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standing to a Motion to Dismiss for failure to exhaust state remedies or for state procedural default and

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Respondent has not yet filed a formal Answer, the Court will review Respondent’s Motion to Dismiss

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pursuant to its authority under Rule 4.

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B. Successive Petitions

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Section 2244 provides:

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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.

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This gate-keeping provision requires the Court of Appeals to authorize successive petitions regarding

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state court judgments pursuant to 28 U.S.C. § 2254. 28 U.S.C. § 2244(b).

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However, the provisions requiring prior appellate permission to proceed with a successive

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

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

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Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000).

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Nevertheless, § 2244(a) prevents a federal inmate from utilizing § 2241 to challenge the validity

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

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

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United States, 138 F.3d 693, 694–695 (9th Cir.1998) (concluding that § 2244(a) bars successive
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petitions under § 2241 directed to the same issue concerning execution of a sentence); Chambers v.

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

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challenge to application of time credits in the administrative calculation of a federal sentence).

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AEDPA's bar against successive petitions have been referred to as a modified res judicata rule

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

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

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

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

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dismissal is warranted. Queen v. Miner, 550 F.3d 253, 255 (3d Cir.2008); Chambers v. United States,

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106 F.3d 472, 475 (2d Cir.1997).
Here, Petitioner purports to challenge the “execution” of his sentence in that the State of Ohio

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has apparently revised its criminal statutes and, Petitioner contends, the criminal drug laws under which

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he was convicted, and which were in part used to enhance his federal sentence, are no longer

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applicable. Although Petitioner strains to emphasize that he is not challenging his career offender

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sentence, while at the same time arguing that he is actually innocent based on Ohio’s change in its

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criminal laws, the simple and obvious fact remains that this is essentially the same contention Petitioner

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raised in his previous petition in this Court.

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Moreover, the Court notes that, in that earlier case, documents were made part of the record that

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indicate that Petitioner had filed an even earlier habeas petition in the Central District of California, in

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case number 14-0539 DSF (RZ), which was dismissed as a “disguised” § 2255 motion on February 5,

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2014. The chronology of these habeas filings makes clear that Petitioner is unwilling to accept the

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judgment of the federal courts that he has already had an “unobstructed procedural shot” at his claim of

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actual innocence, and that he believes he may continue to raise the same claims, tweaked slightly to

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appear to be “new” arguments, in successive habeas petitions before this and other federal district

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courts. It bears emphasis that none of the arguments in the instant petition involve “new” evidence or

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recent changes in the law; rather, they duplicate arguments raised in prior proceedings, all of which

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have been concluded against Petitioner. In sum, Petitioner has been abusing and continues to abuse the

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writ of habeas corpus. The previous case in this Court functions as res judicata for these claims.
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Accordingly, the instant petition for writ of habeas corpus should be dismissed as successive.
RECOMMENDATION

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Based on the foregoing, the Court RECOMMENDS that Respondent’s motion to dismiss (Doc.
11) be GRANTED.
This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within 21

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days after being served with a copy, any party may file written objections with the court and serve a

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copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendation.” Replies to the objections shall be served and filed within 10 days (plus three

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days if served by mail) after service of the objections. The Court will then review the Magistrate

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Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order. Martinez

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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

April 19, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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