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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL IZELL BROWN-SEALS,
Petitioner,

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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

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pursuant to 28 U.S.C. § 2254. The amended petition was dismissed with leave to amend

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and petitioner has filed a second amended petition and several supplemental filings.

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BACKGROUND

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Petitioner was convicted in 2005 in Lake County and in 2015 in Mendocino

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County. On August 16, 2017, the Ninth Circuit denied petitioner’s request to file a second

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or successive petition challenging the 2005 conviction. Docket No. 1 at 26-27. The

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Circuit noted that petitioner could file a habeas petition challenging the 2015 conviction.

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A jury found petitioner guilty of possessing and selling cocaine and

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methamphetamine in 2015. People v. Brown, No. A145580, 2016 WL 4098664, at *1

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(Cal. Ct. App. July 29, 2016). It was also found that petitioner had sustained a prior strike

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conviction and had been convicted of two other priors. Id. The trial court denied

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petitioner’s motion to strike the prior strike conviction. Id. The trial court denied probation

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and sentenced petitioner to a state prison terms of eight years and four months. Id.

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The California Court of Appeal affirmed the judgment on direct appeal and denied

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the sole claim in the petition which argued that the trial court’s refusal to strike the prior

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strike conviction was improper. Id. at *2. It does not appear that petitioner presented any

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claim regarding the 2015 conviction to the California Supreme Court. Petitioner has filed

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at least one habeas petition in the Mendocino County Superior Court. Petition at 11-13.

DISCUSSION

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Standard of Review

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This court may entertain a petition for writ of habeas corpus “in behalf of a person

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in custody pursuant to the judgment of a State court only on the ground that he is in

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custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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§ 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet

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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An

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application for a federal writ of habeas corpus filed by a prisoner who is in state custody

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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

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United States District Court
Northern District of California

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Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the

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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”

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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.

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1970)).

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Analysis

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The original federal petition was dismissed with leave to amend because petitioner

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raised claims regarding both the 2005 and 2015 convictions. Petitioner was told that he

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could only challenge the 2015 conviction and should present claims in an amended

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petition concerning that conviction. Petitioner was also told to either demonstrate that he

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exhausted the claims in state court or file a motion for a stay. In the amended petition,

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petitioner conceded that no claims had been presented the California Supreme Court.

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Petitioner stated that he has filed several habeas petitions in the Mendocino County

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Superior Court and submitted an appeal to the Ninth Circuit Court of Appeals. He was

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informed that those filings were insufficient to fully exhaust his claims as required before

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filing a federal habeas petition. The amended petition was dismissed with leave to

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amend and to file a motion for a stay.

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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
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in support of stay. In the prior orde the court outlined th legal sta
s
s
e
er,
t
he
andards for a stay

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pursuant to Rhines v. Weber, 544 U.S. 269 (2
R
W
U
2005) and a
also the procedures for a stay
r

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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

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1133 (9th Cir. 2009). Be
.
ecause petitioner has presented no arguments in supp of his
port

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req
quest for a stay, the motion is den
m
nied.

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Petition has also indicated that he file a petition with the C
ner
ed
n
California Supreme

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Co
ourt. Yet, th claims will only be exhausted w
he
w
e
when the C
California Supreme Co issues
ourt

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a decision. This federal petition is dismissed w
d
T
d
without prej
judice and petitioner m file a
may

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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

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United States District Court
Northern District of California

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in this court, he must pre
t
h
esent to the California Supreme C
e
Court any c
claims he w
wishes to

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raise in this co
ourt. See Rose v. Lun
R
ndy, 455 U. 509, 522 (1982) (h
.S.
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holding ever claim
ry

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raised in fede habeas petition mu be exha
eral
ust
austed).
CONCLU
USION

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1.

Petitioner’s motions (D
s
Docket Nos 15, 16) a DENIED and this a
s.
are
D
action is

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DIS
SMISSED. Petitioner may file a new petition in this court after he has fully e
e
exhausted

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his claims in state court.
s
s

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2.

easonable jurists woulld not find t result here debatable, a
j
the
Because re

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cer
rtificate of appealabilit (“COA”) is DENIED. See Slack v. McDan
a
ty
.
k
niel, 529 U.S 473,
S.

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484-85 (2000) (standard for COA).
d

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IT IS SO ORDER
S
RED.

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Da
ated: January 8, 2018

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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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2017\2017_05181
1_Brown-Seals_
_v_Davey_(PSP)
)\17-cv-05181-PJ
JH-dis.docx

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3

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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MICHAEL IZ
M
ZELL BROW
WN-SEALS,

Case No. 1
17-cv-05181
1-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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DAVE DAVE et al.,
D
EY,
s.
Defendants

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United States District Court
Northern District of California

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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.

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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.
.

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ichael Izell Brown-Seals ID: V77488
B
s
8
Mi
Corcoran State Prison
e
P.O Box 8800
O.
0
Corcoran, CA 93212

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Da
ated: January 8, 2018
y

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Su
usan Y. Soon
ng
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
K
Kelly Collins, Deputy Cle to the
,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N
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