Torres-Hurtado v. Zuniga
Filing
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FINDINGS and RECOMMENDATIONS recommending that 17 Respondent's Motion to Dismiss be GRANTED, the Petition be DISMISSED With Prejudice, and 18 Petitioner's Motion for Summary Judgment be DENIED re 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Jennifer L. Thurston on 1/10/2017. Referred to Judge O'Neill. Objections to F&R due within twenty-one (21) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOSE TORRES-HURTADO,
Petitioner,
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v.
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RAFAEL ZUNIGA,
Respondent.
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Case No.: 1:16-cv-01354-LJO-JLT (HC)
FINDINGS AND RECOMMENDATION
REGARDING RESPONDENT’S MOTION TO
DISMISS PETITION FOR WRIT OF HABEAS
CORPUS AS SUCCESSIVE
(Doc. 17)
FINDINGS AND RECOMMENDATION
REGARDING PETITIONER’S MOTION FOR
SUMMARY JUDGMENT
[Doc. 18]
[TWENTY-ONE DAY OBJECTION DEADLINE]
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On November 30, 2016, Respondent filed a motion to dismiss the petition as successive. (Doc.
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17.) To date, Petitioner has not filed an opposition to the motion to dismiss. However, on December
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8, 2016, Petitioner filed a motion for summary judgment claiming Respondent failed to timely
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respond. (Doc. 18.) Because the Court finds the petition is successive, it recommends that it be
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DISMISSED.
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DISCUSSION
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A. Procedural Grounds for Motion to Dismiss
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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition
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if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
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relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.
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The Ninth Circuit has allowed respondents 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. Id.
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In this case, Respondent's motion to dismiss is based upon a claim that the petition is
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successive and violates the “abuse of the writ” doctrine. Because Respondent's motion to dismiss is
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similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state
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procedural default and Respondent has not yet filed a formal answer, the Court will review
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Respondent’s motion to dismiss pursuant to its authority under Rule 4.
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B. Successive Petition
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Title 28 U.S.C. § 2244(a) prevents a federal inmate from utilizing § 2241 to challenge the
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validity of a federal court conviction or sentence which has previously been presented to the federal
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court for determination. See Valona v. United States, 138 F.3d 693, 694–695 (9th Cir.1998)
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(concluding that § 2244(a) bars successive petitions under § 2241 directed to the same issue
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concerning execution of a sentence); Chambers v. United States, 106 F.3d 472, 475 (2d Cir.1997)
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(barring as a second § 2241 petition a repetitive challenge to application of time credits in the
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administrative calculation of a federal sentence).
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AEDPA's bar against successive petitions has 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 (1996) (citing McCleskey
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v. Zant, 499 U.S. 467, 489 (1991)). The abuse of the writ doctrine “‘forbids the reconsideration of
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claims that were or could have been raised in a prior habeas petition.’” Alaimalo v. United States, 645
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F.3d 1042, 1049 (9th Cir. 2011) (emphasis added) (quoting Calderon v. United States Dist. Ct. (Kelly),
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163 F.3d 530, 538 (9th Cir. 1998) (en banc). If a successive petition is filed, dismissal is warranted.
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Queen v. Miner, 550 F.3d 253, 255 (3d Cir.2008); Chambers, 106 F.3d at 475.
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In the instant petition, Petitioner challenges the Bureau of Prisons’ failure to award him all of
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the credits to which he claims he is entitled based upon two separate federal convictions and
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sentences, imposed at different times, but which were ordered to be served concurrently by the latter
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sentencing court. However, Petitioner presented this identical claim to the United States District Court
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for the Northern District of West Virginia, in Jose Torres-Hurtado v. Warden Kuma Deboo, Case No.
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2:10-cv-00008-REM-JES, which, on May 3, 2010, reviewed the petition on its merits and denied it
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with prejudice. (Resp’t’s Mot. to Dismiss., Ex. 6). Petitioner also presented these same challenges to
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this Court in Case No. 1:14-cv-00145-JLT. On May 14, 2014, the undersigned dismissed that petition
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as successive. Accordingly, the instant petition for writ of habeas corpus should also be dismissed
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with prejudice as successive and an abuse of the writ. That being so, the Court will not address the
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merits of the petition.
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C. Petitioner’s Motion for Summary Judgment
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Petitioner filed a motion for summary judgment contending that Respondent did not adhere to
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the briefing schedule. Petitioner’s argument is not well-taken. The Court ordered Respondent to file a
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response within sixty days of the date of service of the order. The order was served on October 4,
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2016. Respondent filed a responsive pleading, the motion to dismiss, on November 30, 2016, which
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was within the sixty days provided. Therefore, Petitioner’s motion should be denied.
RECOMMENDATION
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Based on the foregoing, the Court RECOMMENDS that Respondent’s motion to dismiss the
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petition as successive and as an abuse of the writ be GRANTED and the petition be DISMISSED
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WITH PREJUDICE. It is further recommended that Petitioner’s motion for summary judgment be
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DENIED.
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This Findings and Recommendation is submitted to the United States District Court Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
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Rules of Practice for the United States District Court, Eastern District of California. Within twenty-
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one days after being served with a copy of this Findings and Recommendation, any party may file
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written objections with the Court and serve a copy on all parties. Such a document should be
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captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the
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Objections shall be served and filed within ten court days (plus three days if served by mail) after
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service of the Objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28
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U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time
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may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th
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Cir. 1991).
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IT IS SO ORDERED.
Dated:
January 10, 2017
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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