Hayter v. Arnold

Filing 12

ORDER DISMISSING CASE. Signed by Judge James Donato on 11/18/16. (lrcS, COURT STAFF) (Filed on 11/18/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CLIFFORD HAYTER,
Petitioner,

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United States District Court
Northern District of California

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Case No. 16-cv-04220-JD

ORDER OF DISMISSAL

v.

Re: Dkt. Nos. 2, 5, 7, 9
ERIC ARNOLD,
Respondent.

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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. Petitioner was ordered to show cause why this case should not be dismissed

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as successive. He has filed a response.
DISCUSSION

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STANDARD OF REVIEW
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); Rose v.

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Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading
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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of
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habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court
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must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting
each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’
pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility

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of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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LEGAL CLAIMS

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Petitioner presents many claims regarding his 2004 conviction. However, court records
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indicate that petitioner previously filed a habeas petition concerning the same conviction. See
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Hayter v. Clark, Case No. 09-cv-0457-JF. In that case, the Court granted a motion to dismiss as
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untimely and the Ninth Circuit denied petitioner’s motion for a certificate of appealability. Docket
Nos. 27, 37 in Case No. 09-cv-0457-JF. “A claim presented in a second or successive habeas

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corpus application under section 2254 that was not presented in a prior application shall be

United States District Court
Northern District of California

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dismissed . . .” 28 U.S.C. § 2244(b)(2). 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 proven 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).
“Before a second or successive application permitted by this section is filed in the district

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court, the applicant shall move in the appropriate court of appeals for an order authorizing the

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district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).

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Petitioner presents arguments concerning his underlying claims but has not provided

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evidence that the Ninth Circuit has authorized a successive petition. The petition is dismissed but

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petitioner may refile the petition if he receives permission from the Ninth Circuit.

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CONCLUSION

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1. Petitioner’s motion for leave to proceed in forma pauperis (Docket Nos. 5, 7) is

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GRANTED. Petitioner’s motion for an extension (Docket No. 9) is GRANTED and his response

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is deemed timely filed.
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2. The petition is DISMISSED for the reasons set forth above. A certificate of
appealability is DENIED.
3. The motion to appoint counsel (Docket No. 2) is DENIED because the petition is
dismissed.
IT IS SO ORDERED.
Dated: November 18, 2016

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CLIFFORD HAYTER,

Case No. 16-cv-04220-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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ERIC ARNOLD,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on November 18, 2016, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Clifford Hayter ID: V32822
C.S.P. Solano
P.O. Box 4000
Vacaville, CA 95696

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Dated: November 18, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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