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WRIGHT v. HUNTER

United States District Court, S.D. California


November 9, 2005.

ROBERT E. WRIGHT, Plaintiff,
v.
MELVIN HUNTER, Defendants.

The opinion of the court was delivered by: BARBARA MAJOR, Magistrate Judge

REPORT AND RECOMMENDATION FOR ORDER GRANTING RESPONDENT'S MOTION TO DISMISS HABEAS PETITION AS A SUCCESSIVE PETITION [DOC. NO. 15]
This Report and Recommendation is submitted to United States District Judge Napoleon A. Jones pursuant to 28 U.S.C. § 636(b) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.

The instant Petition is not the first Petition for Writ of Habeas Corpus that Petitioner Robert E. Wright has submitted to this Court challenging his 1994 Imperial County Superior Court conviction for lewd and lascivious acts with a child under the age of fourteen in violation of California Penal Code 288(a). Accordingly, for the reasons set forth below, this Court recommends that Respondent's Motion to Dismiss Habeas Petition as a Successive Petition be GRANTED. PRIOR FEDERAL HABEAS PETITION DENIED ON THE MERITS

  On March 10, 1997, Petitioner filed a Petition for Writ of Habeas Corpus in this federal district court in case No. 97cv0392-IEG (JFS). Doc. No. 1 in case No. 97cv0392-IEG (JFS). In that petition, Petitioner challenged his 1994 Imperial County Superior Court conviction. Id. On June 27, 1997, the Court dismissed the petition without prejudice, explaining that Petitioner had failed to exhaust all state judicial remedies. Doc. No. 7 in case No. 97cv0392-IEG (JFS). Petitioner then filed a voluminous habeas petition in the California Supreme Court, which was denied on April 29, 1998 in a one-sentence order referencing In re Swain, 34 Cal.2d 300, 304 (1949). Lodgments 6-7 in case No. 98cv1390-IEG (JAH).

  After having exhausted all state judicial remedies, on June 3, 1998, Petitioner moved to re-open case No. 97cv0392-IEG (JFS). Doc. No. 11 in case No. 97cv0392-IEG (JFS). On June 10, 1998, the Court denied Petitioner's motion, but granted Petitioner leave to re-file his petition under a new case number. Doc. No. 12 in case No. 97cv0392-IEG (JFS).

  Accordingly, on July 30, 1998, Petitioner filed a Petition for Writ of Habeas Corpus in this Court in case No. 98cv1390-IEG (JAH). Doc. No. 1 in case No. 98cv1390-IEG (JAH). On March 31, 1999, Magistrate Judge John A. Houston issued an initial Report and Recommendation, advising that the petition be dismissed as barred by the applicable statute of limitations. Doc. No. 28 in case No. 98cv1390-IEG (JAH). On July 15, 1999, however, the district judge declined to adopt the Report and Recommendation, instead remanding the matter for further proceedings in light of the Ninth Circuit's holding in Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (instructing that the Antiterrorism and Effective Death Penalty Act's ("AEDPA") "statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects that petitioner's final collateral challenge"). Doc. No. 37 in case No. 98cv1390-IEG (JAH).

  Consequently, on December 27, 1999, Magistrate Judge Houston issued a second Report and Recommendation, this time proposing that the petition be found timely, but ultimately recommending that it be dismissed as unexhausted because one of Petitioner's claims had not been sufficiently presented to the California Supreme Court. Doc. No. 47 in case No. 98cv1390-IEG (JAH). On May 10, 2000, Judge Gonzalez adopted the Report and Recommendation in part, determining that the petition was timely, and modified it in part, finding that Petitioner had adequately presented all claims to the state's highest court. Doc. No. 58 in case No. 98cv1390-IEG (JAH). As such, the court remanded the matter to Magistrate Judge Houston for adjudication on the merits. Id.

  On December 18, 2000, Magistrate Judge Houston issued a third Report and Recommendation, addressing the merits of Petitioner's claims and recommending that the Court deny the petition in its entirety. Doc. No. 70 in case No. 98cv1390-IEG (JAH). Petitioner filed objections to the Report and Recommendation on January 23, 2001. Doc. No. 72 in case No. 98cv1390-IEG (JAH). Nevertheless, on July 10, 2001, the Court adopted the Report and Recommendation, and denied the petition with prejudice. Doc. No. 73 in case No. 98cv1390-IEG (JAH). The Court also refused to issue a certificate of appealability, noting that Petitioner failed to make a substantial showing that he had been denied a constitutional right. Id. (citing 28 U.S.C. § 2253(c)(2); Lambright v. Stewart, 220 F.3d 1022 (9th Cir. 2000)).*fn1

  On June 8, 2005, Petitioner filed an additional habeas petition in this federal district court in case No. 05cv1187-IEG (BLM). Doc. No. 1.*fn2 In this most recent petition, Petitioner again challenged his 1994 convictions in Imperial County Superior Court. Id. On September 23, 2005, Respondent filed a motion to dismiss the petition, alleging that because Petitioner failed to obtain permission from the Ninth Circuit to file a successive petition, the petition must be dismissed as improper under 28 U.S.C. § 2244(b)(3)(A). Resp.'s Mot. at 2-5. Petitioner opposed the motion on October 14, 2005. See Pet.'s Opp. at 1-3, 5-6, 8-10. Although Petitioner's arguments in opposition are less than clear, Petitioner seemingly argues that Respondent's motion to dismiss must be denied because (1) he was previously granted leave to re-file his habeas petition under a new case number after having exhausted all state judicial remedies, and therefore had no reason to believe he could not re-file the instant petition after his petition in case No. 98cv1390-IEG (JAH) was denied on the merits, and (2) he contends that the instant petition alleges new facts*fn3 important to the public welfare, namely, the alleged violation of provisions of the United States Constitution, the United States Code, and the California Penal Code,*fn4 which must be resolved quickly on the merits.*fn5 See id. at 2-3, 6. INSTANT PETITION BARRED BY GATEKEEPER PROVISION

  Title 28 U.S.C. § 2244(b) provides that

(1) [a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless —
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2244 (b) (1)-(2). As such, 28 U.S.C. § 2244(b) requires the dismissal of a successive petition unless "the claim relies on a new rule of constitutional law" or "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence." 28 U.S.C. §§ 2244 (b) (2) (A) and (B) (i)-(ii); see also Moore v. Reno, 185 F.3d 1054, 1054 (9th Cir. 1999) (per curiam). However, before the court addresses the requirements of section 2244(b)(1) and (2), the court must verify that Petitioner has satisfied the "gatekeeper" requirements of section 2244 (b) (3). Title 28 U.S.C. § 2244 (b) (3) "creates a `gatekeeping' mechanism for the consideration of second or successive applications in district court." Felker v. Turpin, 518 U.S. 651, 657 (1996). It requires that [b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.

 28 U.S.C. § 2244 (b) (3) (A); see also Felker, 518 U.S. at 657, 664 (explaining that under 28 U.S.C. § 2244 (b) (3) (A), a habeas petitioner must obtain leave from the appropriate court of appeals before filing a second habeas petition in the district court). In this case, there is no evidence indicating that Petitioner either requested or obtained permission from the Ninth Circuit to file a successive habeas petition. Because Petitioner has failed to satisfy the AEDPA's gatekeeper provision, this Court may not consider Petitioner's successive petition. 28 U.S.C. § 2244 (b) (2) (A)-(B). Accordingly, Respondent's Motion to Dismiss Habeas Petition as a Successive Petition should be granted and the case dismissed.

  CONCLUSION

  Because there is no evidence that Petitioner has obtained permission from the Ninth Circuit Court of Appeals to file a successive petition, this Court cannot consider his petition. Accordingly, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) granting Respondent's Motion to Dismiss Petition as a Successive Petition; and (3) dismissing this action in its entirety without prejudice to Petitioner filing a petition in federal district court should he obtain the necessary order from the Ninth Circuit Court of Appeals. IT IS ORDERED that no later than December 2, 2005, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

  IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than December 23, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).

20051109

© 1992-2005 VersusLaw Inc.



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