West v. Hartley
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 9/12/2011 GRANTING 23 Motion to Dismiss. This action is DISMISSED. The Clerk to enter judgment and close this file. CASE CLOSED. (Zignago, K.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DARRYL F. WEST,
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No. CIV S-09-0260-CMK-P
Petitioner,
vs.
ORDER
JAMES D. HARTLEY,
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Respondent.
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/
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties, this
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case is before the undersigned as the presiding judge for all purposes, including entry of final
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judgment. See 28 U.S.C. § 636(c). Pending before the court is respondent’s unopposed motion
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to dismiss (Doc. 23) this petition as second or successive.
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Petitioner was found guilty of robbery and resisting arrest and was sentenced to 13
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years in prison. After the state courts denied relief, petitioner filed a petition for a writ of habeas
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corpus in this court, case no. CIV-S-07-1048-JLQ. On October 27, 2009, the court denied relief
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and entered judgment. Respondent contends that the instant petition is a second or successive
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petition.
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Under 28 U.S.C. § 2244(b)(1), “[a] claim presented in a second or successive
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habeas corpus application . . . that was presented in a prior application shall be dismissed.”
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Under § 2244(b)(2), “[a] claim presented in a second or successive habeas corpus application . . .
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that was not presented in a prior application shall be dismissed. . . .” unless one of two
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circumstances exist. Either the newly raised claim must rely on a new rule of constitutional law,
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or the factual predicate of the new claim could not have been discovered earlier through the
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exercise of due diligence and the new claim, if proven, establishes actual innocence. See id.
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Before a second or successive petition potentially permissible under § 2244(b)(2) can be filed,
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the petitioner must first obtain leave of the Court of Appeals. See 28 U.S.C. § 2244(b)(3). In the
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absence of proper authorization from the Court of Appeals, the district court lacks jurisdiction to
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consider a second or successive petition and must dismiss it. See Cooper v. Calderon, 274 F.3d
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1270 (9th Cir. 2001) (per curiam).
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A second petition can only be successive of a prior petition which has been
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decided on the merits. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). Where a prior
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petition has been dismissed without prejudice for failure to exhaust state court remedies, the
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dismissal does not result in an adjudication on the merits and a habeas petition filed in the district
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court after the initial petition was dismissed is not second or successive. See Slack v. McDaniel,
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529 U.S. 473, 485-86 (2000). Neither the United States Supreme Court nor the Ninth Circuit has
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decided whether a dismissal on statute of limitations grounds constitutes an adjudication on the
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merits. The Second Circuit has concluded that such a dismissal is a merits determination. See
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Murray v. Greiner, 394 F.3d 78, 81 (2nd Cir. 2005). While not directly answering the question,
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the United States Supreme Court cited the Murray decision favorably in Gonzalez v. Crosby, 545
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U.S. 524, 533 n.6 (2005). Other courts have followed Murray. See Mullins v. Horel, 2008 WL
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3244341 (E.D. Cal. 2008); Richards v. Horel, 2006 U.S. Dist. LEXIS 79443 (E.D. Cal. 2006).
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This court agrees with the Murray conclusion. In particular, a dismissal without prejudice for
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lack of exhaustion, which holds open the possibility of a future merits adjudication, is
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distinguishable from a timeliness dismissal, which is with prejudice to returning to federal court.
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Cf. Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005) (citing Howard v. Lewis, 905
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F.2d 1318, 1322-23 (9th Cir. 1990), and stating that the denial of a petition on procedural default
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grounds is a determination that the claims will not be considered by the federal court).
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In this case, the court agrees with respondent that the instant petition is second or
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successive. To the extent petitioner raises the same claims now as he did before, such claims
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must be dismissed. See 28 U.S.C. § 2244(b)(1). To the extent petitioner is attempting in this
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case to raise claims not previously raised, this court lacks jurisdiction to consider the petition
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because petitioner has not obtained leave from the Ninth Circuit Court of Appeals to raise new
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claims.
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Accordingly, IT IS HEREBY ORDERED that:
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Respondent’s unopposed motion to dismiss (Doc. 23) is granted;
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This action is dismissed; and
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The Clerk of the Court is directed to enter judgment and close this file.
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DATED: September 12, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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