Norra v. Warden of High Desert State Prison

Filing 11

Order by Hon. Vince Chhabria granting 5 Motion to Dismiss. (Attachments: # 1 Certificate/Proof of Service)(knm, COURT STAFF) (Filed on 5/15/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DEANDRE NORRA,

Case No. 13-1629 VC (PR)

Petitioner,
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v.

ORDER GRANTING MOTION TO
DISMISS AND DENYING
CERTIFICATE OF
APPEALABILITY

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FRED FOULK, Acting Warden,
Respondent.

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Deandre Norra, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant

United States District Court
Northern District of California

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to 28 U.S.C. § 2254. On October 24, 2013, the Court issued an order for Respondent Fred Foulk

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to show cause why the petition should not be granted. On November 5, 2013, Foulk filed a

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motion to dismiss on the ground that the petition was a successive petition. Norra has filed an

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opposition, Foulk has filed a reply and Norra has filed an unsolicited sur-reply. For the reasons

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stated below, the motion to dismiss is granted.

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BACKGROUND

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On September 14, 2011, Norra filed a petition for a writ of habeas corpus challenging his

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conviction and sentence in Alameda County Superior Court No. CH45618. See Norra v. People

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of California, case no. C 11-4322 YGR (PR) ("2011 petition"). On February 28, 2013, the Court
entered judgment in favor of the respondent upon granting a motion to dismiss the claims in the
petition as procedurally defaulted and denying an amendment to add an untimely additional claim.
See 2011 petition, doc. nos. 28 and 29. Norra did not appeal the judgment.
On April 10, 2013, Norra filed the instant petition challenging his conviction and sentence
in Alameda County Superior Court No. CH45618. Doc. no. 1 at 2.
DISCUSSION
A district court must dismiss claims presented in a second or successive habeas petition
challenging the same conviction and sentence that has been adjudicated on the merits. 28 U.S.C.
§ 2244(b)(1); McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); Babbitt v. Woodford, 177

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F.3d 744, 745-46 (9th Cir. 1999). A claim is adjudicated "on the merits" if the district court either

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considers and rejects the claims or determines that the underlying claim will not be considered by

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a federal court. McNabb, 576 F.3d at 1029; see also Henderson v. Lampert, 396 F.3d 1049, 1053

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(9th Cir. 2005) (denial of petition on procedural default grounds constitutes disposition on the

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merits). However, a district court may consider claims in a second petition if the claims presented

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in the previous petition were denied for failure to exhaust. Babbitt, 177 F.3d at 745-46; McNabb,

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576 F.3d at 1030. A district court must dismiss any new claims raised in a successive petition

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unless the petitioner received an order from the court of appeals authorizing the district court to

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consider the petition. 28 U.S.C. § 2244(b)(2), (3). A petitioner who does not appeal the dismissal
of an earlier petition cannot evade the rules governing successive petitions by attacking the

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United States District Court
Northern District of California

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validity of the earlier dismissal in the second proceeding. Henderson, 396 F.3d at 1054-55.

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This petition challenges the same conviction and sentence Norra challenged in his 2011

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petition, which was decided on the merits. Because the 2011 petition was denied on the merits

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and because Norra has not presented an order from the Ninth Circuit Court of Appeals authorizing

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this Court to consider any new claims presented here, this petition must be dismissed as a

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successive petition.

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Norra argues that this petition is not successive because, in his 2011 petition, he moved for

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a stay and abeyance to exhaust his claims in state court and he did exhaust his claims in state court

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in a "reasonable time." Therefore, he argues that this instant petition should be adjudicated on the

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merits because his claims are timely. However, as discussed above, the 2011 petition was

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dismissed on the ground that the claims were procedurally barred and that any amendment would

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be untimely. The Court did not address Norra's motion for a stay and abeyance and did not

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dismiss any claims because they were unexhausted. Because Norra did not appeal the judgment

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dismissing the 2011 petition, he may not collaterally attack that judgment in this successive

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petition. Henderson, 396 F. 3d at 1054-55. Any argument regarding the motion for a stay and

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abeyance in the 2011 petition cannot be asserted in this Court; Norra must make any such

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argument in a motion before the Ninth Circuit Court of Appeals for an order authorizing this Court

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to consider his petition. See 28 U.S.C. § 2244(b)(3)(A).
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CONCLUSION

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Based on the foregoing, the Court grants Foulk's motion to dismiss. This habeas petition is

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DISMISSED without prejudice to refiling if Norra obtains the necessary order from the Ninth

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Circuit. The Clerk shall enter judgment, terminate any pending motions and close the file.

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Petitioner has not shown “that jurists of reason would find it debatable whether the petition

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states a valid claim of the denial of a constitutional right [or] that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

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U.S. 473, 484 (2000). Accordingly, a certificate of appealability is DENIED.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: May 15, 2014
______________________________________
VINCE CHHABRIA
United States District Judge

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