Hubbard v. Brown, et al.
Filing
5
FINDINGS and RECOMMENDATIONS for Dismissal of Petitioner as Second or Successive; Court Clerk to ASSIGN District Judge signed by Magistrate Judge Sheila K. Oberto on 2/16/2018. Referred to Judge Lawrence J. O'Neill. Objections to F&R due within Thirty Days. (Sant Agata, S)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
ZANE HUBBARD,
10
Petitioner,
11
12
13
No. 1:18-cv-00181-SKO HC
FINDINGS AND RECOMMENDATIONS
FOR DISMISSAL OF PETITIONER AS
SECOND OR SUCCESSIVE
v.
EDMUND G. BROWN, Jr., and
THE STATE JUSTICE INSTITUTE
ACT OF 1984
14
COURT CLERK TO ASSIGN DISTRICT
JUDGE
Respondents.
(Doc. 1)
15
16
17
Screening Order
18
Petitioner, Zane Hubbard, is a state prisoner proceeding pro se with a petition for writ of
19
20
21
22
23
24
25
26
27
28
habeas corpus pursuant to 28 U.S.C. § 2254. The petition alleges two claims: (1) “treason and
levy by Govern[o]r Edmund G. Brown, Junior;” and (2) “Governor Jerry Brown has subjected
Mexican American Indian(s) to low intensity warfare under the “State Justice Institute Act of
1984.” Because Petitioner has filed two previous habeas petitions concerning the same
conviction, the Court will recommend dismissing the petition as second or successive.
I.
Procedural and Factual Background
A jury convicted Petitioner of kidnapping to commit robbery, carjacking for the purpose
of kidnapping, assault with a semiautomatic firearm, criminal threats, active participation in a
criminal street gang, and being a felon in possession of a firearm. People v. Ramirez, F062512,
1
1
2
3
4
2013 WL 943873 (Cal. Ct. App. March 12, 2013). The Kern County Superior Court sentenced
Petitioner to an indeterminate term of 15 years to life in prison and a determinate term of 24 years
4 months. Id. Following a direct appeal, Petitioner unsuccessfully sought habeas relief in
California state courts.
5
6
7
8
9
10
11
On October 23, 2013, Petitioner filed a petition for federal habeas relief pursuant to 28
U.S.C §2254. Hubbard v. Seng, No. CV 13-2099-RJT, 2014 WL 1761013 (E.D. Cal. April 30,
2014). The Court dismissed the petition because Petitioner’s claims were barred by judicial
immunity. Petitioner filed a second § 2254 petition on the same day. Hubbard v. Gipson, No.
1:13-cv-01758-LJO-JLT, 2016 WL 5341283 (E.D. Cal. Sept. 22, 2016). The Court denied all of
Petitioner’s claims. Petitioner filed the above-captioned petition on February 5, 2018.
II.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Preliminary Screening
Rule 4 of the Rules Governing § 2254 cases requires the Court to conduct a preliminary
review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it
plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the
Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
A petition for habeas corpus should not be dismissed without leave to amend unless it appears
that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson,
440 F.2d 13, 14 (9th Cir. 1971).
III.
No District Court Jurisdiction Over a Second or Successive Petition
The circuit court of appeals, not the district court, must decide whether a second or
successive petition satisfies the statutory requirements to proceed. 28 U.S.C. § 2244(b)(3)(A)
("Before a second or successive petition permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the district court
to consider the application"). This means that a petitioner may not file a second or successive
petition in district court until the petitioner has obtained leave from the court of appeals. Felker v.
Turpin, 518 U.S. 651, 656-57 (1996). In the absence of an order from the appropriate circuit
court, a district court lacks jurisdiction over a petition and must dismiss the second or successive
28
2
1
petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997).
2
3
4
5
6
7
8
Petitioner has not secured leave from the Ninth Circuit Court of Appeals to file the abovecaptioned petition. Accordingly, the Court must dismiss the petition for lack of jurisdiction.
III.
Certificate of Appealability
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a
district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a
certificate of appealability is 28 U.S.C. § 2253, which provides:
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
(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—
(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
(B) the final order in a proceeding under section 2255.
(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.
(3) The certificate of appealability under paragraph (1) shall
indicate which specific issues or issues satisfy the showing required by
paragraph (2).
24
25
26
If a court denies a habeas petition, the court may only issue a certificate of appealability
"if jurists of reason could disagree with the district court's resolution of his constitutional claims
27
or that jurists could conclude the issues presented are adequate to deserve encouragement to
28
proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000).
3
1
Although the petitioner is not required to prove the merits of his case, he must demonstrate
2
"something more than the absence of frivolity or the existence of mere good faith on his . . .
3
part." Miller-El, 537 U.S. at 338.
4
Reasonable jurists would not find the Court's determination that the petition is a second or
5
6
successive petition to be debatable or wrong, or conclude that the issues presented required
7
further adjudication. Accordingly, the Court recommends declining to issue a certificate of
8
appealability.
9
IV.
10
11
Recommendation and Order
Based on the foregoing, the undersigned hereby recommends that the Court dismiss the
petition in this action as second or successive and decline to issue a certificate of appealability.
12
These Findings and Recommendations will be submitted to the United States District
13
14
Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty
15
(30) days after being served with these Findings and Recommendations, either party may file
16
written objections with the Court. The document should be captioned AObjections to Magistrate
17
Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and
18
filed within fourteen (14) days after service of the objections. The parties are advised that failure
19
to file objections within the specified time may constitute waiver of the right to appeal the District
20
21
22
Court's order.
Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v.
Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
The Court Clerk is hereby directed to assign a district judge to this action.
23
24
25
IT IS SO ORDERED.
26
27
Dated:
February 16, 2018
/s/
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
28
4
.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?