Lerma v. Cate, et al

Filing 8

ORDER DISMISSING PETITION AS DUPLICATIVE; INSTRUCTIONS TO CLERK. Signed by Judge Lucy H. Koh on 1/5/12. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 1/6/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL LERMA,

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Petitioner,
v.
WARDEN G.D. LEWIS,
Respondent.

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No. C 11-4880 LHK (PR)
ORDER DISMISSING PETITION
AS DUPLICATIVE;
INSTRUCTIONS TO CLERK

(Docket Nos. 2, 3.)

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254 challenging the denial of his parole because (1) it violated the Ex
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Post Facto Clause, and (2) it violated the terms of his plea bargain. For the reasons stated below,
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the Court dismisses the petition as duplicative.
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BACKGROUND
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According to the petition, Petitioner pleaded guilty, and was convicted of second degree
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murder, on October 15, 1981. He was sentenced to a prison term of 15-years to life. He was
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denied parole in 2009. He filed unsuccessful state habeas petitions, challenging that denial.
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Petitioner filed the instant petition in the Eastern District of California on September 22, 2011.
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The Eastern District of California transferred this action to this Court on October 5, 2011.
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Order Dismissing Petition as Duplicative; Instructions to Clerk
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DISCUSSION
A.

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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

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v. Hodges, 423 U.S. 19, 21 (1975).

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A district court shall “award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application that the

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applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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B.

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Petitioner’s Claims
Petitioner claims that the Board of Parole Hearings’ 2009 decision to defer Petitioner’s

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next parole hearing for fifteen years pursuant to Marsy’s Law violated the Ex Post Facto Clause.

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Petitioner also claims that the denial of parole violated his plea agreement. Liberally construed,

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Petitioner has set forth cognizable claims for relief.

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C.

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Second or Successive Petition
On August 30, 2011, Petitioner filed a federal habeas petition in Case No. 11-4265 LHK,

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challenging the same 2009 denial of parole. In general, a claim presented in a second or

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successive petition under 28 U.S.C. § 2254 that was not presented in a prior petition must be

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dismissed unless it satisfies one of two sets of requirements, neither of which are applicable here.

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However, where a new pro se habeas petition is filed before the adjudication of a prior petition

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is complete, the new petition should be construed as a motion to amend the pending petition

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rather than as a successive application. Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008)

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(holding that petitioner’s second pro se habeas petition was not successive under § 2244 and

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should instead be construed as a motion to amend because it was filed while his previous petition

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was still pending before the district court). As of today, Petitioner’s petition in Case No. 11-

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4265 LHK has not yet been adjudicated. Thus, it is inappropriate to dismiss the instant petition

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as a successive petition. See id.

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Instead, the Court construes the underlying petition as a motion to amend the petition in
Order Dismissing Petition as Duplicative; Instructions to Clerk
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Case No. 11-4265 LHK. See id. The Court notes that Petitioner has not filed any prior

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amendments in Case No. 11-4265 LHK; there is no evidence of bad faith or undue delay; and

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there appears to be no prejudice to Respondent to allow an amendment. So construed, the

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motion to amend is GRANTED. Cf. Waldrip v. Hall, 548 F.3d 729, 731-32 (9th Cir. 2008)

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(noting that public policy strongly encourages courts to permit amendments).

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CONCLUSION

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In light of Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008), the underlying petition is

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construed as a motion to amend the petition in Case No. 11-4265 LHK. The Clerk is directed

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to file the petition in Case No. 11-4880 LHK as a supplemental petition in Case No. 11-4265

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LHK and close the file in this case, Case No. 11-4880 LHK, as duplicative. The Clerk is

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also directed to file a copy of this Order in Case No. 11-4265 LHK.

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Respondent’s December 20, 2011 motion to dismiss in Case No. 11-4265 LHK (Dkt

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No. 6) is VACATED. Within sixty days of the filing date of this Order, Respondent shall file a

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an answer to all claims, conforming in all respects to Rule 5 of the Rules Governing Section

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2254 Cases, showing cause why a writ of habeas corpus should not be granted. Respondent shall

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file with the answer and serve on Petitioner a copy of all portions of the underlying state criminal

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record that have been transcribed previously and that are relevant to a determination of the issues

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presented by the petition.

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If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
Court and serving it on Respondent within thirty days of the date the answer is filed.
Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as

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set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases

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within sixty days of the date this order is filed. If Respondent files such a motion, Petitioner

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shall file with the court and serve on Respondent an opposition or statement of non-opposition

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within thirty days of the date the motion is filed, and Respondent shall file with the Court and

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serve on Petitioner a reply within fifteen days of the date any opposition is filed.

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It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded that all
communications with the Court must be served on Respondent by mailing a true copy of the
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document to Respondent’s counsel. Petitioner must keep the court and all parties informed of

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any change of address by filing a separate paper captioned “Notice of Change of Address.” He

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must comply with the Court’s orders in a timely fashion. Failure to do so may result in the

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dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure

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41(b).

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CERTIFICATE OF APPEALABILITY
The federal rules governing habeas cases brought by state prisoners require a district

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court that denies a habeas petition to grant or deny a certificate of appealability (“COA”) in its

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ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. For the reasons

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set out in the discussion above, Petitioner has not shown “that jurists of reason would find it

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debatable whether the petition states a valid claim of the denial of a constitutional right [or] that

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jurists of reason would find it debatable whether the district court was correct in its procedural

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ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA is DENIED.

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IT IS SO ORDERED.
DATED:

1/5/12

_________________________
LUCY H. KOH
United States District Judge

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Order Dismissing Petition as Duplicative; Instructions to Clerk
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