Brown-Seals v. Davey et al

Filing 17

ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Phyllis J. Hamilton on 1/8/18. ***Civil Case Terminated. Certificate of Service attached. (kcS, COURT STAFF) (Filed on 1/8/2018)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 MICHAEL IZELL BROWN-SEALS, Petitioner, 6 7 8 9 10 Case No. 17-cv-05181-PJH v. DAVE DAVEY, et al., Respondent. ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY Re: Dkt. Nos. 15, 16 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus United States District Court Northern District of California 11 pursuant to 28 U.S.C. § 2254. The amended petition was dismissed with leave to amend 12 and petitioner has filed a second amended petition and several supplemental filings. 13 BACKGROUND 14 Petitioner was convicted in 2005 in Lake County and in 2015 in Mendocino 15 County. On August 16, 2017, the Ninth Circuit denied petitioner’s request to file a second 16 or successive petition challenging the 2005 conviction. Docket No. 1 at 26-27. The 17 Circuit noted that petitioner could file a habeas petition challenging the 2015 conviction. 18 A jury found petitioner guilty of possessing and selling cocaine and 19 methamphetamine in 2015. People v. Brown, No. A145580, 2016 WL 4098664, at *1 20 (Cal. Ct. App. July 29, 2016). It was also found that petitioner had sustained a prior strike 21 conviction and had been convicted of two other priors. Id. The trial court denied 22 petitioner’s motion to strike the prior strike conviction. Id. The trial court denied probation 23 and sentenced petitioner to a state prison terms of eight years and four months. Id. 24 The California Court of Appeal affirmed the judgment on direct appeal and denied 25 the sole claim in the petition which argued that the trial court’s refusal to strike the prior 26 strike conviction was improper. Id. at *2. It does not appear that petitioner presented any 27 claim regarding the 2015 conviction to the California Supreme Court. Petitioner has filed 28 at least one habeas petition in the Mendocino County Superior Court. Petition at 11-13. DISCUSSION 1 2 Standard of Review 3 This court may entertain a petition for writ of habeas corpus “in behalf of a person 4 in custody pursuant to the judgment of a State court only on the ground that he is in 5 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 6 § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 7 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 8 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 9 pursuant to a judgment of a state court must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 11 United States District Court Northern District of California 10 Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the 12 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 13 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 14 1970)). 15 Analysis 16 The original federal petition was dismissed with leave to amend because petitioner 17 raised claims regarding both the 2005 and 2015 convictions. Petitioner was told that he 18 could only challenge the 2015 conviction and should present claims in an amended 19 petition concerning that conviction. Petitioner was also told to either demonstrate that he 20 exhausted the claims in state court or file a motion for a stay. In the amended petition, 21 petitioner conceded that no claims had been presented the California Supreme Court. 22 Petitioner stated that he has filed several habeas petitions in the Mendocino County 23 Superior Court and submitted an appeal to the Ninth Circuit Court of Appeals. He was 24 informed that those filings were insufficient to fully exhaust his claims as required before 25 filing a federal habeas petition. The amended petition was dismissed with leave to 26 amend and to file a motion for a stay. 27 28 Petitioner’s second amended petition presents several claims for relief. However, while petitioner has stated that he seeks a stay, he has failed to present any arguments 2 1 in support of stay. In the prior orde the court outlined th legal sta s s e er, t he andards for a stay 2 pursuant to Rhines v. Weber, 544 U.S. 269 (2 R W U 2005) and a also the procedures for a stay r 3 K all, d h v. 64 pursuant to Kelly v. Sma 315 F.3d 1063 (9th Cir. 2003) and King v Ryan, 56 F.3d 4 1133 (9th Cir. 2009). Be . ecause petitioner has presented no arguments in supp of his port 5 req quest for a stay, the motion is den m nied. 6 Petition has also indicated that he file a petition with the C ner ed n California Supreme 7 Co ourt. Yet, th claims will only be exhausted w he w e when the C California Supreme Co issues ourt 8 a decision. This federal petition is dismissed w d T d without prej judice and petitioner m file a may 9 new petition when the claims have been exhausted. Pet w w titioner is ag gain informed that bef fore he may challenge either the fact or leng of his co e gth onfinement in a habea petition t as 11 United States District Court Northern District of California 10 in this court, he must pre t h esent to the California Supreme C e Court any c claims he w wishes to 12 raise in this co ourt. See Rose v. Lun R ndy, 455 U. 509, 522 (1982) (h .S. 2 holding ever claim ry 13 raised in fede habeas petition mu be exha eral ust austed). CONCLU USION 14 15 1. Petitioner’s motions (D s Docket Nos 15, 16) a DENIED and this a s. are D action is 16 DIS SMISSED. Petitioner may file a new petition in this court after he has fully e e exhausted 17 his claims in state court. s s 18 2. easonable jurists woulld not find t result here debatable, a j the Because re 19 cer rtificate of appealabilit (“COA”) is DENIED. See Slack v. McDan a ty . k niel, 529 U.S 473, S. 20 484-85 (2000) (standard for COA). d 21 IT IS SO ORDER S RED. 22 Da ated: January 8, 2018 23 24 25 PH HYLLIS J. H HAMILTON N Un nited States District Ju s udge 26 27 \\can ndoak.cand.circ9 9.dcn\data\users\PJHALL\_psp\2 2017\2017_05181 1_Brown-Seals_ _v_Davey_(PSP) )\17-cv-05181-PJ JH-dis.docx 28 3 1 2 UNITED STATES D D DISTRICT C COURT 3 NORTHER DISTRIC OF CALI RN CT IFORNIA 4 5 MICHAEL IZ M ZELL BROW WN-SEALS, Case No. 1 17-cv-05181 1-PJH Plaintiff, 6 v. CERTIFIC CATE OF S SERVICE 7 8 DAVE DAVE et al., D EY, s. Defendants 9 10 United States District Court Northern District of California 11 I, the un ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S. ee ice Dis strict Court, Northern Di istrict of Cal lifornia. 12 13 14 15 16 That on January 8, 2018, I SER n RVED a true and correct copy(ies) of the attache by f ed, pla acing said co opy(ies) in a postage paid envelope a d addressed to the person(s hereinafte listed, by s) er dep positing said envelope in the U.S. Mail, or by pla d n M acing said co opy(ies) into an inter-off delivery o ffice y rec ceptacle loca in the Cl ated lerk's office. . 17 18 19 ichael Izell Brown-Seals ID: V77488 B s 8 Mi Corcoran State Prison e P.O Box 8800 O. 0 Corcoran, CA 93212 20 21 22 Da ated: January 8, 2018 y 23 24 Su usan Y. Soon ng Cl lerk, United States Distr Court d rict 25 26 27 28 By y:_________ ___________ _______ K Kelly Collins, Deputy Cle to the , erk H Honorable PH HYLLIS J. H HAMILTON N 4

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