Gray v. Hatton
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 07/12/18 RECOMMENDING that respondent's motion to dismiss 34 and petitioner's petition for a writ of habeas corpus 1 be dismissed without prejudice, for lack of jurisdiction. Petition 1 and Motion to Dismiss 13 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BEAU HOUSTON GRAY,
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No. 2:17-cv-1172-TLN-CMK-P
Petitioner,
vs.
FINDINGS AND RECOMMENDATION
SHAWN HATTON,
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Respondent.
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s unopposed
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motion to dismiss (Doc. 34). Petitioner requested additional time in which to file an opposition
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to the motion. However, no opposition has been received, and the time for filing an opposition
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has passed.
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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to
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dismiss a petition if it “plainly appears from the petition and any attached exhibits that the
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petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing
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Section 2254 Cases. The Ninth Circuit has allowed respondents to file a motion to dismiss in
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lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being
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in violation of the state’s procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th
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Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state
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remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural
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grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F. Supp.
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1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss
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after the court orders a response, and the Court should use Rule 4 standards to review the motion.
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See Hillery, 533 F. Supp. at 1194 & n.12. The petitioner bears the burden of showing that he has
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exhausted state remedies. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
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Respondent brings this motion to dismiss petitioner’s habeas corpus petition as a
second or successive petition.1 Respondent contends petitioner previously filed a petition for
writ of habeas corpus in this court challenging the same conviction and sentence.
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Under 28 U.S.C. § 2244(b)(1), “[a] claim presented in a second or successive
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habeas corpus application . . . that was presented in a prior application shall be dismissed.”
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Under § 2244(b)(2), “[a] claim presented in a second or successive habeas corpus application . . .
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that was not presented in a prior application shall be dismissed. . . .” unless one of two
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circumstances exist. Either the newly raised claim must rely on a new rule of constitutional law,
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or the factual predicate of the new claim could not have been discovered earlier through the
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exercise of due diligence and the new claim, if proven, establishes actual innocence. See id.
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Before a second or successive petition potentially permissible under § 2244(b)(2) can be filed,
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however, the petitioner must first obtain leave of the Court of Appeals. See 28 U.S.C. §
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2244(b)(3). In the absence of proper authorization from the Court of Appeals, the district court
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lacks jurisdiction to consider a second or successive petition and must dismiss it. See Cooper v.
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Calderon, 274 F.3d 1270 (9th Cir. 2001) (per curiam).
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Upon review of the instant petition, the undersigned concludes that the court lacks
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Respondent alternatively argues the petition filed in this action was filed beyond
the statute of limitations, pursuant to 28 U.S.C. § 2244(d). However, as addressed herein, this
court lacks jurisdiction to address the petition as filed.
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jurisdiction because the instant petition is a second or successive petition filed without prior
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leave of the Ninth Circuit Court of Appeals. Petitioner is challenging a 2010 conviction from
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Shasta County for denial of his due process rights. He filed a prior petition, challenging the same
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conviction, in 2013, Gray v. Foulk, 2:13-cv-0775-JKS. This prior petition was adjudicated on the
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merits. (See 2:13-cv-0775 JKS, Doc. 18). Judgment was entered on August 26, 2015, and the
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case was closed. (See 2:13-cv-0775 JKS, Doc. 19). Petitioner then appealed this court’s
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decision to the Ninth Circuit, which denied petitioner’s request for a certificate of appealability
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May 19, 2016, for failure to make a substantial showing of the denial of a constitutional right.
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(See 2:13-cv-0775 JKS, Doc. 23). Petitioner has not provided authorization from the Court of
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Appeals to file a second or successive petition, and this court therefore lacks jurisdiction to
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consider the pending petition.
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IV.
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Based on the foregoing, the undersigned recommends respondent’s motion to
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dismiss (Doc. 34) and petitioner’s petition for a writ of habeas corpus (Doc. 1) be dismissed,
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without prejudice, for lack of jurisdiction.
CONCLUSION
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 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. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: July 12, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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