Hatchett v. Gonzalez

Filing 9

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 9/17/13 ORDERING that 7 Motion to Proceed IFP is GRANTED; it is RECOMMENDED that this action be dismissed. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CECIL JEROME HATCHETT,

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No. 2:12-cv-02228 MCE DAD P

Petitioner,
v.

ORDER AND

GONZALEZ,

FINDINGS AND RECOMMENDATIONS
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an amended application for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915. The handwritten petition now before the court appears to

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present claims of: prosecutorial misconduct in failing to disclose exculpatory evidence to the

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defense; ineffective assistance of defense counsel; and that petitioner’s no contest plea was not

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knowingly and voluntarily made.

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Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See

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28 U.S.C. § 1915(a).

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The court’s records reveal that petitioner has previously filed an application for a writ of

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habeas corpus attacking the 1994 judgment of conviction entered against him in the Yolo County

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Superior Court following his no contest plea to first degree murder. That is the same judgment
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of conviction which petitioner seeks to challenge in this subsequently filed federal habeas action.

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Petitioner’s previous application was filed with this court on February 26, 1998, and federal

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habeas relief was denied on the merits on October 6, 2003. See Hatchett v. Hubbard, Case No.

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2:98-cv-00345 WBS JFM P. More importantly, the same claims that petitioner attempts to

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present now were presented in his prior federal habeas application and were rejected. See Id. at

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Doc. Nos. 96 & 99.)1

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Because the claims presented in this second or successive petition were presented by

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petitioner in his prior habeas petition, this petition must be summarily dismissed. 28 U.S.C. §

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2244(b)(1) (“A claim presented in a second or successive habeas corpus application under section

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2254 that was presented in a prior application shall be dismissed.”).
In accordance with the above, IT IS HEREBY ORDERED that petitioner’s September 14,

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2012 application to proceed in forma pauperis (ECF No. 7) is granted; and

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IT IS RECOMMENDED that this action be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, petitioner may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Petitioner is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: September 17, 2013

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DAD:4
hatc2228.success

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Indeed petitioner was denied a certificate of appealability by the Ninth Circuit in connection
with the earlier federal habeas action. Case No. 2:98-cv-00345 WBS JFM P, Doc. No. 126.
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