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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRELL RAY EDWARDS,

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No. 2:15-cv-1234 KJN P

Petitioner,
v.

ORDER

B. DUFFY, Warden,
Respondent.

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Petitioner is a state prisoner, proceeding without counsel. On June 10, 2015, petitioner

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filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to

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proceed in forma pauperis. Petitioner consented to proceed before the undersigned for all

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purposes. See 28 U.S.C. § 636(c).

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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). The court must now determine if the action is frivolous or malicious.

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This court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A

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district court considering an application for a writ of habeas corpus shall “award the writ or issue

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an order directing the respondent to show cause why the writ should not be granted, unless it
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appears from the application that the applicant or person detained is not entitled thereto.” 28

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U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are

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vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v.

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Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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Pursuant to a plea agreement, petitioner was convicted of second degree murder and

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aiding and abetting on April 24, 1991, in the Superior Court of Los Angeles, California.

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Petitioner was sentenced to fifteen years to life in state prison.

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Petitioner appears to argue that his sentence violates his plea agreement, that the abstract

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of judgment is void, and that the sentence imposed is void. (ECF No. 1 at 9, 14, 20.) To the

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extent petitioner challenges his conviction or the sentence imposed thereon, he must file his

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petition for writ of habeas corpus in the United States District Court for the Central District of

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California because he was convicted in Los Angeles, California. It is not clear that petitioner is

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challenging his underlying conviction of the imposition of his sentence; thus, the undersigned

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declines to transfer this action to the Central District. In addition, given the date of conviction,

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1991, it is likely that any such challenge would be barred by the statute of limitations. 28 U.S.C.

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§ 2244(d)(1).

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Moreover, petitioner also appears to argue that the execution of his sentence is improper,

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that he is entitled to a determinate sentence, and he references the Board of Parole Hearings

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(“BPH”), the BPH’s alleged “no parole policy,” and Marsy’s Law. The instant petition was filed

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with the court on June 10, 2015. The court’s own records reveal that on January 8, 2015,

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petitioner filed a petition containing challenges to the BPH, including his claims that he is

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allegedly entitled to determinate sentence, that his sentence is void and violates the ex post facto

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clause and the bill of attainder, and includes his reference to Marsy’s Law. (Case No. 2:15-cv-

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0055 DAD.)1 The respondents named here are also named in Case No. 2:15-cv-0055 DAD.

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Petitioner does not challenge a specific parole hearing in either Case No. 2:15-cv-0055 DAD or

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the instant action.

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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).
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Petitioner cannot pursue the same sentencing claims in two different cases at the same

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time. See Woods v. Carey, 525 F.3d 886, 888-90 (9th Cir. 2008) (where second petition raised

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new claims, district court should construe petition as motion to amend). Here, because

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petitioner’s claims appear to duplicate his arguments in Case No. 2:15-cv-0055 DAD, the

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undersigned declines to construe the instant petition as a motion to amend. If petitioner has

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additional claims he would like to raise, he must seek leave to amend in Case No. 2:15-cv-0055

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DAD. Due to the duplicative nature of the instant claims, the court finds them frivolous and will

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summarily dismiss them. 28 U.S.C. § 1915(d).

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In light of the above, petitioner’s motion for hearing is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner is granted leave to proceed in forma pauperis.

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2. This action is dismissed without prejudice. See Fed. R. Civ. P. 41(b).

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3. The motion for hearing (ECF No. 3) is denied.

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4. The court declines to issue a certificate of appealability under 28 U.S.C. § 2253(c)(3).

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Dated: June 23, 2015

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/edwa1234.156

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