Ke v. Brown

Filing 21

ORDER DENYING MOTIONS TO RE-FILE HABEAS PETITION AND FOR IN-CHAMBERS MEETING; DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE. Signed by Judge Vince Chhabria on 4/6/2018. The deputy clerk hereby certifies that on 4/6/2018 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing. (knm, COURT STAFF) (Filed on 4/6/2018)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

HUI LIAN KE,
Plaintiff,
v.
EDMUND G. BROWN,
Defendant.

Case No. 17-cv-02464-VC
ORDER DENYING MOTIONS TO REFILE HABEAS PETITION AND FOR
IN-CHAMBERS MEETING;
DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS WITH
PREJUDICE
Re: Dkt. Nos. 15, 16

On March 2, 2018, Petitioner Hui Lian Ke, incarcerated at the Elmwood Correctional
Facility, filed a one-page pleading entitled, “Habeas Corpus,” which was filed as a new habeas
action and assigned to United States Magistrate Judge Sallie Kim.1 On May 3, 2017, the clerk of
the court advised Ke that her habeas action was deficient because it was not submitted on the
proper form, and sent Ke a blank copy of the court’s form for a petition for a writ of habeas
corpus and advised Ke that if she did not submit a completed petition on the proper form within
28 days, the petition would be dismissed and the file closed. On June 19, 2017, because more
than 42 days had elapsed and Ke had not submitted the requisite completed form, Magistrate
Judge Kim dismissed the petition without prejudice.
On January 25, 2018, Ke filed a motion to re-file her habeas petition and, on January 26,
2018, she filed a motion for an in-chambers meeting with the judge. On February 6, 2018,
Magistrate Judge Kim issued an order directing the clerk to reopen the case and to reassign it to a

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Ke later filed two other petitions for a writ of habeas corpus: Ke v. Davis, Case No. C 17-4826
VC and Ke v. Matteucci, Case No. C 17-6717 VC.

district judge pursuant to Williams v. King, 875 F.3d 500, 502-05 (9th Cir. 2017) (magistrate
judge lacks jurisdiction over a case unless all named parties, including unserved ones, consent to
magistrate judge’s jurisdiction).
The case was reassigned to the undersigned district judge, who has reviewed the record.
The case was correctly dismissed without prejudice on June 19, 2017 because Ke had not filed a
proper petition within the 28 days granted to her. Furthermore, the petition would have been
dismissed without prejudice for failure to state a claim because none of the claims, presumably
based on Ke’s incarceration at the Elmwood Correctional Facility, are comprehensible. Ke’s
motion to re-file a habeas petition also attempts to allege claims that are incomprehensible.
Therefore, this motion is denied. Furthermore, the petition now will be dismissed with prejudice
because Ke’s subsequent petition, Ke v. Davis, No. C 17-4826, also alleges claims about her
incarceration at the Elmwood Correctional Facility.
CONCLUSION
The motions to re-file a petition and for an in-chambers meeting are denied. The petition
is dismissed with prejudice. The clerk of the court shall issue a separate judgment and close the
file.
IT IS SO ORDERED.
Dated: April 6, 2018
______________________________________
VINCE CHHABRIA
United States District Judge

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