Mitchell v. Davis
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/15/16 recommending that the petition be dismissed for lack of jurisdiction. Referred to Judge Morrison C. England Jr. 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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CARL D. MITCHELL,
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Petitioner,
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No. 2:16-cv-2379 MCE CKD P
v.
FINDINGS AND RECOMMENDATIONS
RON DAVIS,
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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. Petitioner paid the filing fee. For the reasons set forth
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below, the undersigned will recommend that the petition be dismissed as successive.
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I. Background
In 2005, petitioner was convicted in the Sacramento County Superior Court for several
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counts of robbery and false imprisonment, and sentenced to a term of 384 years to life. (ECF No.
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1 at 1.) On appeal, “the trial court’s true finding of [defendant’s] eighth alleged prior conviction
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was reversed, defendant’s sentence was vacated, and the matter was remanded for recalculating
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defendant’s sentence.” (Id., Ex. A at 34.) However, on remand, the trial court “found that the
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setting aside of the eighth prior conviction didn’t change the original sentence” and again
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imposed a sentence of 384 years to life. (Id. at 14, 34.)
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Petitioner appealed his resentencing and, on November 10, 2008, the state appellate court
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found that the trial court erred in re-calculating petitioner’s sentence. (Id., Ex. A at 35.) The
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court of appeals vacated petitioner’s sentence and remanded the matter to the trial court with
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instructions to recalculate the sentence. (Id. at 36-37.)
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According to court records in an earlier-filed federal habeas action, “[o]n March 20, 2009,
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the Sacramento County Superior Court sentenced him for a third time, imposing an indeterminate
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state prison term of 324 years to life. The Superior Court entered an amended abstract of
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judgement, reflecting a sentence of the same duration, on March 23, 2009.” Mitchell v. Chappell,
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No. 2:12-cv-0296 MCE DAD (E.D. Cal.), ECF No. 38 at 1.
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In the instant petition, petitioner claims that the March 2009 resentencing violated his
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constitutional right to due process.
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II. Successive Petition
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Petitioner challenged his 2009 resentencing in Mitchell v. Chappell, and respondent filed
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a motion to dismiss the action as time-barred. (See No. 2:12-cv-0296 MCE DAD, ECF No. 38 at
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2.) Respondent’s motion was granted, and the action was dismissed as time-barred on March 30,
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2015. (Id., ECF Nos. 38 & 44.) The U.S. Court of Appeals for the Ninth Circuit affirmed the
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district court’s order of dismissal on January 28, 2016. (Id., ECF No. 50.)
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A petition is second or successive if it makes “claims contesting the same custody
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imposed by the same judgment of a state court” that the petitioner previously challenged, and on
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which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147, 153
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(2007). A second or subsequent habeas petition is not considered “successive” if the initial
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habeas petition was dismissed for a technical or procedural reason. See Slack v. McDaniel, 529
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U.S. 473, 485–487 (2000). However, in McNabb v. Yates, 576 F.3d 1028,1030 (9th Cir. 2009),
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the Ninth Circuit held that dismissal of a habeas petition for failure to comply with the AEDPA
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statute of limitations renders subsequent petitions challenging the same conviction successive.
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Because petitioner’s prior federal habeas challenge to his 2009 resentencing was dismissed for
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untimeliness, the instant petition is successive.
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Before filing a successive petition in district court, a petitioner must obtain from the
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appellate court “an order authorizing the district court to consider the application.” 28 U.S.C. §
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2244(b)(3)(A). Without an order from the appellate court, the district court is without jurisdiction
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to consider a second or successive petition. See Burton, 549 U.S. at 152, 157. As petitioner
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offers no evidence that the appellate court has authorized this court to consider a successive
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petition challenging his 2009 resentencing, the instant petition should be dismissed for lack of
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jurisdiction.
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Accordingly, IT IS HEREBY RECOMMENDED that the petition be dismissed for lack of
jurisdiction.
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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. Such a document should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendations.” In his objections petitioner may address whether a
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certificate of appealability should issue in the event he files an appeal of the judgment in this
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case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or
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deny a certificate of appealability when it enters a final order adverse to the applicant).
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Petitioner is advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: November 15, 2016
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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