Edwards v. Duffy

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 6/23/15 ORDERING that Petitioner is granted leave to proceed in forma pauperis. This action is dismissed without prejudice. The motion for hearing 3 is DENIED. The court declines to issue a certificate of appealability(Dillon, 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 DARRELL RAY EDWARDS, 12 13 14 15 No. 2:15-cv-1234 KJN P Petitioner, v. ORDER B. DUFFY, Warden, Respondent. 16 17 Petitioner is a state prisoner, proceeding without counsel. On June 10, 2015, petitioner 18 filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to 19 proceed in forma pauperis. Petitioner consented to proceed before the undersigned for all 20 purposes. See 28 U.S.C. § 636(c). 21 Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford 22 the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 23 28 U.S.C. § 1915(a). The court must now determine if the action is frivolous or malicious. 24 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 25 custody pursuant to the judgment of a State court only on the ground that he is in custody in 26 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A 27 district court considering an application for a writ of habeas corpus shall “award the writ or issue 28 an order directing the respondent to show cause why the writ should not be granted, unless it 1 1 appears from the application that the applicant or person detained is not entitled thereto.” 28 2 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are 3 vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. 4 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 5 Pursuant to a plea agreement, petitioner was convicted of second degree murder and 6 aiding and abetting on April 24, 1991, in the Superior Court of Los Angeles, California. 7 Petitioner was sentenced to fifteen years to life in state prison. 8 Petitioner appears to argue that his sentence violates his plea agreement, that the abstract 9 of judgment is void, and that the sentence imposed is void. (ECF No. 1 at 9, 14, 20.) To the 10 extent petitioner challenges his conviction or the sentence imposed thereon, he must file his 11 petition for writ of habeas corpus in the United States District Court for the Central District of 12 California because he was convicted in Los Angeles, California. It is not clear that petitioner is 13 challenging his underlying conviction of the imposition of his sentence; thus, the undersigned 14 declines to transfer this action to the Central District. In addition, given the date of conviction, 15 1991, it is likely that any such challenge would be barred by the statute of limitations. 28 U.S.C. 16 § 2244(d)(1). 17 Moreover, petitioner also appears to argue that the execution of his sentence is improper, 18 that he is entitled to a determinate sentence, and he references the Board of Parole Hearings 19 (“BPH”), the BPH’s alleged “no parole policy,” and Marsy’s Law. The instant petition was filed 20 with the court on June 10, 2015. The court’s own records reveal that on January 8, 2015, 21 petitioner filed a petition containing challenges to the BPH, including his claims that he is 22 allegedly entitled to determinate sentence, that his sentence is void and violates the ex post facto 23 clause and the bill of attainder, and includes his reference to Marsy’s Law. (Case No. 2:15-cv- 24 0055 DAD.)1 The respondents named here are also named in Case No. 2:15-cv-0055 DAD. 25 Petitioner does not challenge a specific parole hearing in either Case No. 2:15-cv-0055 DAD or 26 the instant action. 27 28 1 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2 1 Petitioner cannot pursue the same sentencing claims in two different cases at the same 2 time. See Woods v. Carey, 525 F.3d 886, 888-90 (9th Cir. 2008) (where second petition raised 3 new claims, district court should construe petition as motion to amend). Here, because 4 petitioner’s claims appear to duplicate his arguments in Case No. 2:15-cv-0055 DAD, the 5 undersigned declines to construe the instant petition as a motion to amend. If petitioner has 6 additional claims he would like to raise, he must seek leave to amend in Case No. 2:15-cv-0055 7 DAD. Due to the duplicative nature of the instant claims, the court finds them frivolous and will 8 summarily dismiss them. 28 U.S.C. § 1915(d). 9 In light of the above, petitioner’s motion for hearing is denied. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Petitioner is granted leave to proceed in forma pauperis. 12 2. This action is dismissed without prejudice. See Fed. R. Civ. P. 41(b). 13 3. The motion for hearing (ECF No. 3) is denied. 14 4. The court declines to issue a certificate of appealability under 28 U.S.C. § 2253(c)(3). 15 Dated: June 23, 2015 16 17 /edwa1234.156 18 19 20 21 22 23 24 25 26 27 28 3

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