Stuart v. Sherman

Filing 13

ORDER of Dismissal signed by Judge Edward M. Chen. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 9/19/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WENDELL STUART, Petitioner, 8 9 Case No. 16-cv-06073-EMC ORDER OF DISMISSAL v. Docket Nos. 8, 12 10 Respondent. 12 For the Northern District of California United States District Court 11 S. SHERMAN, 13 Wendell Stuart filed this action for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to 14 challenge both his conviction and a recent parole decision. First, Mr. Stuart challenged his 1981 15 murder conviction, claiming that his right to due process was violated because the felony murder 16 rule on which his conviction rests is impermissibly vague under the reasoning of Johnson v. 17 United States, 135 S. Ct. 2551 (2015). Second, he challenged a 2015 decision by the Board of 18 Parole Hearings (BPH), claiming that he was denied equal protection of the laws when the BPH 19 refused to calculate his term after denying parole for him. (Calculating the term refers to setting 20 the base term, i.e., determining the expected number of months of imprisonment for a murder by 21 referring to a matrix of listed circumstances, see 15 Cal. Code Regs. § 2282 et seq., and then 22 making adjustments for other factors.) 23 Respondent filed two motions to dismiss this action. In the first motion to dismiss, 24 Respondent argued that the petition failed to allege facts sufficient to show entitlement to federal 25 habeas relief; the challenge to the BPH decision was not cognizable in a federal habeas action 26 because it was based on a state court settlement agreement rather than federal law; and the 27 challenge to the 1981 conviction was time-barred, procedurally defaulted, and a second or 28 successive petition. Mr. Stuart opposed that motion to dismiss and shortly thereafter was paroled 1 from prison. In the second motion to dismiss, Respondent argued that the petition’s challenge to 2 the BPH decision was now moot because Mr. Stuart had been released on parole on May 25, 2017. 3 Mr. Stuart did not oppose that motion to dismiss. Two of the reasons for dismissal argued by 4 Respondent are dispositive: the petition is a second or successive petition with respect to the 5 challenge to the 1981 conviction, and the petition is moot with respect to the challenge to the BPH 6 decision. Dismissal is required. 7 Challenge to 1981 Conviction and Sentence: The petition is not Mr. Stuart’s first federal 8 habeas petition concerning his 1981 murder conviction. Instead it is his fourth such petition. In 9 1985, Mr. Stuart filed a petition under 28 U.S.C. § 2254, claiming that his right to due process was SW/DLJ. That petition was denied on May 28, 1987. In 1990, Mr. Stuart filed a second petition 12 For the Northern District of California violated by a jury instruction error at the trial. See Stuart v. Vasquez, Case No. C 85-6086 11 United States District Court 10 under 28 U.S.C. § 2254, claiming that he was denied counsel during an interrogation and that the 13 trial court admitted improper hearsay evidence. See Stuart v. Ylst, Case No. C 90-0008 JPV. That 14 petition was dismissed in 1990, after Mr. Stuart failed to file an amended petition as ordered by 15 the court. Mr. Stuart filed his third petition under 28 U.S.C. § 2254, on October 23, 1995, 16 claiming that he was improperly convicted of felony murder during a simple kidnapping, he was 17 denied a fair trial due to the admission of certain evidence of another killing; cumulative error; and 18 ineffective assistance of appellate counsel. See Stuart v. Kernan, Case No. C 95-3744 EFL. That 19 petition was dismissed on April 2, 1996, as an abuse of the writ (i.e., a violation of the rule against 20 piecemeal presentation of claims in multiple habeas petitions). Both this Court and the United 21 States Court of Appeals for the Ninth Circuit denied a request for a certificate of probable cause, 22 thus bringing that case to a close in 1996. 23 A second or successive petition may not be filed in this court unless the petitioner first 24 obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing this 25 court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). 26 Mr. Stuart has not obtained an order from the Ninth Circuit permitting the filing of a 27 second or successive petition. This court will not entertain a new petition from Mr. Stuart until he 28 first obtains permission from the Ninth Circuit to file such a petition. Insofar as this action 2 1 challenges the 1981 conviction and sentence, this action is DISMISSED without prejudice to Mr. 2 Stuart filing a petition in this court after he obtains the necessary order from the Ninth Circuit. If Mr. Stuart wants to attempt to obtain the necessary order from the Ninth Circuit, he 3 4 should file an “Application For Leave To File Second Or Successive Petition” in the Ninth Circuit 5 (at 95 Seventh Street, San Francisco, CA 94103). A copy of the form application is enclosed with 6 this order for his convenience. 7 Challenge to 2015 BPH Decision: As mentioned earlier, Mr. Stuart’s petition also 8 challenged the 2015 BPH decision, as he contended that his right to equal protection was violated 9 when the BPH refused to calculate his term. Mr. Stuart urged that the BPH was required to 10 calculate the term of any parole candidate, regardless of whether he was found suitable for parole. Because it is undisputed that Mr. Stuart was released on parole in May or June 2017, the 12 For the Northern District of California United States District Court 11 petition for a writ of habeas corpus challenging BPH’s 2015 decision not to calculate his term 13 must be dismissed as moot. See Fendler v. United States Bureau of Prisons, 846 F.2d 550, 555 14 (9th Cir. 1988) (habeas challenge to denial of parole will become moot if petitioner is released on 15 parole before court considers petition); see also Burnett v. Lampert, 432 F.3d 996, 999-1001 (9th 16 Cir. 2005) (finding habeas petition still moot after petitioner violated parole and was 17 reincarcerated). For the foregoing reasons, Respondent’s motions to dismiss are GRANTED and this action 18 19 is dismissed. Docket Nos. 8 and 12. Insofar as the petition challenges the 1981 conviction, the 20 petition is a second or successive petition for which permission must be obtained from the Ninth 21 Circuit before this Court can entertain it. Insofar as the petition challenges the 2015 BPH 22 decision, the dispute has become moot due to Mr. Stuart’s release on parole. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 3 1 A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in 2 which “jurists of reason would find it debatable whether the petition states a valid claim of the 3 denial of a constitutional right and that jurists of reason would find it debatable whether the 4 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 5 The Clerk shall close the file. 6 7 IT IS SO ORDERED. 8 9 10 ______________________________________ EDWARD M. CHEN United States District Judge 12 For the Northern District of California United States District Court 11 Dated: September 19, 2017 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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