Carter v. Rackley

Filing 29

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 03/07/19 RECOMMENDING that respondent's motion to dismiss 9 be granted and the petition for writ of habeas corpus be dismissed without prejudice as successive. MOTION to DISMISS 9 referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FREDERICK RENAE CARTER,

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Petitioner,

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No. 2:16-cv-0013 WBS DB P

v.

FINDINGS AND RECOMMENDATIONS

RONALD RACKLEY, Warden,

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Respondent.

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Petitioner, Frederick Renae Carter, is a state prisoner proceeding pro se and in forma

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pauperis with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Therein, petitioner

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raises six claims concerning his 1997 murder and stalking conviction, including ineffective

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assistance of counsel, violations of his due process and equal protection rights, and Batson error.

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Respondent moves to dismiss the petition as successive and untimely. Respondent also contends

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that grounds one and six should be dismissed for failure to state a claim. For the following

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reasons, the undersigned will recommend that respondent’s motion to dismiss be granted and the

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petition be dismissed as successive.

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I.

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Relevant Background
On December 11, 1997, petitioner was convicted in the Sacramento County Superior

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Court of first degree murder and stalking. With a sentencing enhancement allegation found to be

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true, petitioner was sentenced on January 9, 1998, to an indeterminate term of thirty-seven years
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to life. The judgment was affirmed by the state appellate court on November 24, 1999. Petitioner

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did not seek review in the state supreme court.

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A.

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To date, petitioner has filed eight state post-conviction collateral actions challenging his

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State Court Filings

judgment:
1. Action No. 1: On February 14, 2000, petitioner filed a petition for writ of habeas

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corpus in the California Supreme Court. (Lodged Doc. [“LD”] 3.) This petition was

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denied on April 26, 2000. (LD 4.)

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2. Action No. 2: On April 5, 2001, petitioner filed a petition for writ of habeas corpus in

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the Sacramento County Superior Court. (LD 5.) This petition was denied on May 3,

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2001. (LD 6.)

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3. Action No. 3: On June 13, 2001, petitioner filed a petition for writ of habeas corpus in

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the California Court of Appeal, Third Appellate District. (LD 7.) This petition was

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denied on June 21, 2001. (LD 8.)

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4. Action No. 4: On August 15, 2001, petitioner filed a petition for writ of habeas corpus

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in the California Supreme Court. (LD 9.) This petition was denied on February 27,

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2002. (LD 10.)

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5. Action No. 5: On February 9, 2014, petitioner filed a petition for writ of habeas corpus

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in the Sacramento County Superior Court. (LD 11.) This petition was denied on May

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16, 2014. (LD 12.)

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6. Action No. 6: On June 9, 2014, petitioner filed an appeal in the California Court of

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Appeal, Fifth Appellate District, regarding the May 16, 2014, denial of his petition for

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writ of habeas corpus. (LD 13.) This appeal was dismissed on June 26, 2014. (LD 14.)

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7. Action No. 7: On January 19, 2015, petitioner filed a petition for writ of habeas corpus

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in the California Court of Appeal, Third Appellate District. (LD 15.) This petition was

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denied on January 29, 2015. (ECF No. 16.)

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8. Action No. 8: On April 1, 2015, petitioner filed a petition for writ of habeas corpus in

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the California Supreme Court. (LD 17.) This petition was denied on September 30,

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2015. (LD 18.)

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B.

Federal Court Filings

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On March 6, 2002, petitioner filed a petition for writ of habeas corpus in this court, Carter

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v. Finn, 2:02-cv-0486-GEB-PAN (the “first federal petition” or “first petition”). There, petitioner

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raised four claims concerning the same 1997 stalking conviction underlying this case: (1) the trial

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court erred when it allowed the jury to consider unspecified criminal counts against petitioner; (2)

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the trial court erroneously excluded petitioner’s spontaneous declaration as hearsay; (3)

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instructional error; and (4) sentencing error. This petition was dismissed as untimely on October

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10, 2013.

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Petitioner initiated this case on January 4, 2016. Respondent filed the pending motion to

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dismiss on February 21, 2017. (ECF No. 9.) Petitioner has filed an opposition. (ECF No. 20.)

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This matter is fully briefed and ready for disposition.

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II.

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Standard of Review
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the

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petitioner is not entitled to relief in the district court.” The Court of Appeals for the Ninth Circuit

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construes a motion to dismiss a habeas petition as a request for the court to dismiss under Rule 4.

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See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). Accordingly, the undersigned will

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review the state’s motion to dismiss pursuant to her authority under Rule 4.
In ruling on a motion to dismiss, the court “‘must accept factual allegations in the

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[petition] as true and construe the pleadings in the light most favorable to the non-moving party.’”

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Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (quoting Manzarek v. St. Paul Fire &

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Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008)). In general, exhibits attached to a pleading

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are “‘part of the pleading for all purposes.’” Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d

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1114, 1124 (9th Cir. 2013) (quoting Fed. R. Civ. P. 10(c)).

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III.

Analysis
Respondent presents three grounds for the dismissal of this action: the petition is

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successive, it is untimely, and claims 1 and 6 fail to state a claim. Because the Court finds that the

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petition should be dismissed as successive pursuant to 28 U.S.C. § 2244, it declines to consider

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respondent’s remaining two grounds for dismissal.

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“A claim presented in a second or successive habeas corpus application under section

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2254 that was not presented in a prior application shall be dismissed....” 28 U.S.C. § 2244(b)(2).

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This is the case unless,

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(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proved and viewed in light of
the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.
28 U.S.C. § 2244(b)(2).

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However, “[b]efore a second or successive application permitted by this section is filed in

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the district court, the applicant shall move in the appropriate court of appeals for an order
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authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).
A petition is not considered “second or successive” where the petition was not
“adjudicated on the merits.” Green v. White, 223 F.3d 1001, 1002 n.1 (9th Cir. 2000) (citing

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Slack v. McDaniel, 529 U.S. 473, 485-486 (2000). Nonetheless, a petition that was previously
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dismissed for “failure to comply with the statute of limitations renders subsequent petitions
second or successive for purposes of the AEDPA, 28 U.S.C. § 2244(b).” McNabb v. Yates, 576

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F.3d 1028, 1030 (9th Cir. 2009).
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Respondent argues that dismissal of the instant petition as successive is mandated under
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§ 2244(b)(2) because it includes six grounds not asserted in the first federal petition and because
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that first petition was dismissed as time-barred.
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Petitioner does not dispute that the claims that are asserted here were not asserted in the

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first petition. He also does not argue that his current petition is not successive. Rather, he

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contends that the dismissal of the first federal petition was not on the merits and therefore cannot

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serve to bar this action. That argument is foreclosed by McNabb, supra, 576 F.3d at 1030. Next,

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petitioner argues that his claims fall under the two exceptions set forth in § 2244(b)(2)(A) and/or

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(B). In support, he relies on two Supreme Court cases that he asserts are applicable to his claims:

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Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013). But as

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respondent rightly points out, whether the exceptions are applicable to this case is a determination

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that must be made by the appellate court, not this court. See 28 U.S.C. § 2244(b)(3); Greenawalt

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v. Stewart, 105 F.3d 1287, 1287-88 (9th Cir. 1997); Ninth Circuit Rules 22-3 (directing an

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applicant seeking to file a successive petition to “state how the requirements of sections 2244(b)

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… have been satisfied.”).
The instant petition challenges petitioner’s conviction and sentence that were previously

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challenged in this federal district court under 28 U.S.C. § 2254 and is therefore a successive

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petition. Petitioner must move in the United States Court of Appeals for the Ninth Circuit for an

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order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). Therefore,

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petitioner’s application must be dismissed without prejudice to its re-filing upon obtaining

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authorization from the United States Court of Appeals for the Ninth Circuit.

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IV.

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Conclusion
Based on the foregoing, IT IS HEREBY RECOMMENDED that respondent’s motion to

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dismiss (ECF No. 9) be GRANTED, and the petition for writ of habeas corpus be DISMISSED

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without prejudice as successive.

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These findings and recommendations will be 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, any party may file written

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objections with the court and serve a copy on all parties. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within seven days after service of the objections. The parties
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are advised that failure to file objections within the specified time may result in waiver of the

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right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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In the objections, the party may address whether a certificate of appealability should issue

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in the event an appeal of the judgment in this case is filed. See Rule 11, Rules Governing § 2254

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Cases (“The district court must issue or deny a certificate of appealability when it enters a final

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order adverse to the applicant.”).

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Dated: March 7, 2019

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/DLB7
DB/Inbox/Substantive/cart0013.mtd

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