Cevallos v. Cate

Filing 24

ORDER signed by Magistrate Judge Dale A. Drozd on 01/24/14 ordering petitioner' first amended petition is summarily dismissed. Petitioner's 03/13/13 motion for separation from superior court room County of Glenn 19 is denied. Petitioner 's 05/10/13 motion to preserve information 21 is denied. Petitioner's 05/31/13 motion to make respondent respond to petitioner 22 is denied. Petitioner's 07/12/13 motion to recuse magistrate judge 23 is denied. The clerk of th e court is directed to serve a copy of the amended petition filed in this case together with a copy of this order on the Attorney General of the State of California and to close this action. The court declines to issue a certificate of appealability. (cc: Michael Farrell, Attorney General) (Plummer, M) (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL ANTHONY CEVALLOS, 12 13 No. 2:12-cv-01433 DAD P Petitioner, v. ORDER 14 RED BLUFF PAROLE UNIT, 15 Respondent. 16 17 Petitioner, who appears to be on parole, has filed an amended petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner has also consented to Magistrate Judge 19 jurisdiction in this action pursuant to 28 U.S.C. § 636(c). (See ECF No. 4.) 20 I. First Amended Petition 21 On March 13, 2013, the court issued an order directing petitioner to file an amended 22 petition because the claims and allegations set forth in his original habeas petition were in large 23 part incomprehensible and difficult to decipher. It appeared from those allegations, however, that 24 petitioner sought to challenge a judgment of conviction entered against him in 2010 for making a 25 criminal threat in violation of California Penal Code § 422, with a hate crime sentencing 26 enhancement imposed pursuant to California Penal Code § 422.75(a). In the March 13, 2013 27 order petitioner was advised of the requirements for the stating of a claim cognizable in a federal 28 habeas action and was warned that the court would summarily dismiss his amended petition “[i]f 1 1 it plainly appears on the face of the petition . . . that the petitioner is not entitled to relief[.]” 2 (ECF No. 18 at 3) (quoting Rule 4, Rules Governing §2254 Cases). 3 On April 2, 2013, petitioner filed an amended petition for federal habeas relief. (Doc. No. 4 20). Unfortunately, the allegations set forth in that petition are as incomprehensible as those set 5 forth by petitioner in his original petition. For example, in his amended petition petitioner 6 presents eight grounds for relief, beginning with the first two as follows: 7 Ground one: I’m testifying that the prosecution, my Court appointed council [sic] and the judge surrendered a justice system to reclassify a purpose of processing information in a Court Rm. 8 9 10 Ground two: As a realized responsibility the purpose of this corrupted cooperation was governmentally interacted to transfer Authority to a blended in capitalistic environment undetected[.] 11 (ECF No. 20 at 4.) The remaining six grounds for relief stated in the amended petition are just as 12 nonsensical as the first two. Therefore, based on the allegations of the amended petition and 13 exhibits attached thereto, the court finds that petitioner is clearly not entitled to federal habeas 14 relief and that his amended petition should be summarily dismissed pursuant to Rule 4 of the 15 Rules Governing §2254 Cases. 16 II. Other Matters Pending Before the Court 17 Because petitioner had inundated this court with motions following the filing of his 18 original petition, in the court in its order of March 13, 2013 had directed petitioner to file no 19 additional motions until the court had reviewed his amended petition and issued an order 20 directing respondent to respond thereto. Nonetheless, petitioner has filed four additional motions 21 with the court which will be addressed below. On March 13, 2013, petitioner filed a motion “for a separation from the Superior Court 22 23 Room County of Glenn.” (ECF No. 19 at 1.) On May 10, 2013, petitioner filed a motion styled 24 as a, “Motion To Preserve This Information.” (ECF No. 21.) On May 31, 2013, petitioner filed a 25 motion styled as a “Motion To Make Respondent Respond To Petitioner.” Each of these motions 26 will be denied both as incomprehensible and as having been rendered moot by the court’s 27 summary dismissal of the amended petition. 28 ///// 2 1 Petitioner’s fourth motion, filed on July 12, 2013, is styled as a “Motion To Recuse 2 Magistrate Judge Official Of This Case.” (ECF No. 23.) As best the court can determine, it 3 appears that in that motion petitioner is expressing a belief that he has received “prejudicial 4 treatment” in this action, although the basis for petitioner’s contention in this regard is unclear at 5 best. (ECF No. 23 at 1.) Petitioner’s motion to recuse will also be denied. Under 28 U.S.C. § 6 144, a party who believes “that the judge before whom the matter is pending has a personal bias 7 or prejudice either against him or in favor of any adverse party” must provide an affidavit setting 8 out the following: 9 10 11 12 The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith. 13 28 U.S.C. § 144. Petitioner has not complied with the requirements of § 144 by providing a 14 proper and timely affidavit. Moreover, it appears that petitioner is seeking the undersigned’s 15 recusal because of the court’s rulings in this action. However, as the United States Supreme 16 Court has noted, “judicial rulings alone almost never constitute a valid basis for a bias or 17 partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Instead, the judicial 18 rulings are a basis for appeal, not recusal. Id. (“In and of themselves . . . [judicial rulings] cannot 19 possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances 20 evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is 21 involved. Almost invariably, they are proper grounds for appeal, not for recusal.”); Leslie v. 22 Gruupo ICA, 198 F.3d 1152, 1160 (9th Cir. 1999) (“Leslie’s allegations stem entirely from the 23 district judge’s adverse rulings. This is not an adequate basis for recusal.”) (citations omitted). 24 25 26 Accordingly, petitioner’s motion for recusal will also be denied. III. Certificate of Appealability Rule 11 of the Federal Rules Governing Section 2254 Cases states that “[t]he district court 27 must issue or deny a certificate of appealability when it enters a final order adverse to the 28 applicant.” A certificate of appealability should be granted for any issue that petitioner can 3 1 demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different 2 court, or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford, 3 290 F.3d 1006, 1010 (9th Cir.2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). For 4 the reasons set forth above, the court declines to issue a certificate of appealability in this case. 5 CONCLUSION 6 In accordance with the above, IT IS HEREBY ORDERED that: 7 1. Petitioner’s first amended petition is summarily dismissed. See Rule 4, Rules 8 Governing §2254 Cases; 2. Petitioner’s March 13, 2013 motion “for separation from superior court room County 9 10 of Glenn” (ECF No. 19) is denied; 11 3. Petitioner’s May 10, 2013 “motion to preserve information” (ECF No. 21) is denied; 12 4. Petitioner’s May 31, 2013 “motion to make respondent respond to petitioner” (ECF 13 No. 22) is denied; 5. Petitioner's July 12, 2013 “motion to recuse the magistrate judge” (ECF No. 23) is 14 15 16 denied; 6. The Clerk of the Court is directed to serve a copy of the amended petition filed in this 17 case together with a copy of this order on the Attorney General of the State of California and to 18 close this action; and 19 20 7. The court declines to issue a certificate of appealability. Dated: January 24, 2014 21 22 23 24 25 DAD:4 ceva1433.summdism 26 27 28 4

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