The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS SUCCESSIVE PETITION ) PURSUANT TO 28 U.S.C. Â§ 2244(b) (Doc. 4) AND TO DECLINE TO ISSUE ) A CERTIFICATE OF APPEALABILITY DEADLINE FOR OBJECTIONS:THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. Â§ 2254. The matter was referred to the Magistrate Judge pursuant to 28 U.S.C. Â§ 636(b) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on February 25, 2010, in the United States District Court for the Northern District of California and transferred to this Court on April 5, 2010.
I. Screening the Petition
Rule 4 of the Rules Governing Â§ 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
Petitioner is an inmate of Folsom State Prison who was sentenced to twenty-six (26) years to life in the Kern County Superior Court in 1995 for receiving stolen property with prior convictions in violation of Cal. Pen. Code Â§Â§ 496, 667.5, and 667. (Pet. 2.)
The present petition is not the first petition filed with respect to the judgment pursuant to which Petitioner is detained. The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981). The Court will take judicial notice of its own dockets.
On June 22, 1999, a habeas petition challenging Petitioner's Kern County conviction and sentence was denied on the merits by this Court in Craig Allen Ward v. Gail Lewis, 1:98-cv-5355-AWISMS-P. (Docs. 18, 30, 31.)
Further, additional dockets reflect that Petitioner filed other petitions addressing his Kern County sentence which were dismissed as successive. (Craig Allen Ward v. Gail Lewis, 1:98-cv-05984-OWW-HGB-P, docs. 14, 16, 18; Craig Allen Ward v. M.C. Kramer, 1:06-cv-01738-OWW-LJO-HC, docs. 7, 10, 11.)
Because the petition in the present case was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. Â§ 2244(b)(1). The Court must also dismiss a second or successive petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, constitutional right or 2) the factual basis of the claim was not previously discoverable through due diligence, and the new facts establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. Â§ 2244(b)(2)(A)-(B).
However, it is not the district court that decides whether a second or successive petition meets these requirements, which allow a petitioner to file a second or successive petition. Section 2244(b)(3)(A) provides, "Before 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." In other words, a petitioner must obtain leave from the Ninth Circuit before he or she can file a second or successive petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss claims in a second or successive habeas corpus application under section 2254 unless the Court of Appeals has given Petitioner leave to file the ...