Stone v. Holland
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/3/14 ORDERING that petitioners request to proceed in forma pauperis is granted. IT IS RECOMMENDED that this petition be dismissed without prejudice. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 21 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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AARON PARNELL STONE,
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Petitioner,
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No. 2:14-cv-2409 KJM AC P
v.
ORDER &
KIMBERLY HOLLAND, Warden,
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FINDINGS AND RECOMMENDATIONS
Respondent.
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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. Pursuant to the October 20, 2014 order at ECF No. 4,
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petitioner has submitted a completed application in support of a request to proceed in forma
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pauperis. ECF No. 7.
Examination of the in forma pauperis application reveals that petitioner is unable to afford
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the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See
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28 U.S.C. § 1915(a).
Petitioner challenges the sixteen-year sentence he received on December 15, 2006 in
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Sacramento County Superior Court. Court records, of which this court takes judicial notice,1
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reveal that petitioner has repeatedly challenged the same conviction/sentence.
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Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626,
635 n.1 (N.D. Cal. 1978), aff=d, 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126 (1981).
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Petitioner’s original habeas petition, challenging his 2006 conviction on six counts of
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lewd and lascivious conduct with a child under 14, was considered in Case No. 2:10-cv-3454
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KJM GGH P and denied as untimely on March 26, 2012. A subsequent challenge to the identical
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conviction and sentence was dismissed without prejudice by order filed on October 17, 2012,
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because petitioner had not moved in the Ninth Circuit Court of Appeals for an order authorizing a
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second or successive petition under 28 U.S.C. § 2244(b)(3). See Case No. 2:12-2174 GEB GGH
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P. Yet another habeas application challenging petitioner’s 2006 conviction and sentence was
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dismissed on June 26, 2013 for lack of authorization by the Court of Appeals under 28 U.S.C. §
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2244(b)(3). See Case No. 2:13-cv-0518 KJM GGH P. Petitioner appears to have also
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unsuccessfully attempted an end-run around the applicable statute by way of a purported Rule
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60(b) motion, in a case that was dismissed on February 14, 2013. See Case No. 2:12-cv-2986 AC
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P. Yet another case attempted to circumvent the bar on second or successive petitions by
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characterizing the challenge as one brought pursuant to 28 U.S.C. § 2241. See Case No. 2:14-cv-
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1164 WBS DAD P.2
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Here, petitioner’s effort to characterize the petition as one brought pursuant to 28 U.S.C. §
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2241 (see ECF No. 1 at 1; ECF No. 6) is equally unavailing. The Ninth Circuit has unequivocally
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held that “a state habeas petitioner may not avoid the limitations imposed on successive petitions
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by styling his petition as one pursuant to 28 U.S.C. §2241 rather than pursuant to 28 U.S.C.
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§2254.” Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (citing Greenawalt v. Stewart, 105
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F.3d 1287, 1287-88 (9th Cir. 1997) (per curiam)). Despite the form petitioner has used, § 2254
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“is the exclusive avenue for a state court prisoner to challenge the constitutionality of his
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detention.” White v. Lambert, 370 F.3d 1002, 1007 (9th Cir. 2004).
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Under 28 U.S.C. § 2244(b)(3)(A): “Before a second or successive application permitted
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by this section is filed in the district court, the applicant shall move in the appropriate court of
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appeals for an order authorizing the district court to consider the application.” Once again,
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petitioner has sought to proceed on a habeas petition absent the proper authorization. This
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In that case, findings and recommendations recommending dismissal, filed on October 2, 2014,
are pending. See Case No. 2:14-cv-1164, ECF No.17.
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petition should be dismissed without prejudice.
Accordingly, IT IS ORDERED that petitioner’s request to proceed in forma pauperis is
granted.
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IT IS RECOMMENDED that this petition be dismissed without prejudice.
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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 twenty-one 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. Such a document should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: November 3, 2014
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