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Gary Dean Webb v. Warden Martel

February 23, 2011

GARY DEAN WEBB,
PETITIONER,
v.
WARDEN MARTEL,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION AS SUCCESSIVE PURSUANT TO 28 U.S.C. § 2244(b) (Doc. 1), TO DISMISS PETITIONER'S MOTION FOR) RECONSIDERATION AS MOOT (Doc. 4), AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on February 15, 2011.

I. Screening the Petition

Rule 4 of the Rules Governing § 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).

II. Background

Petitioner is an inmate of the Mule Creek State Prison who is serving a sentence of twenty-five (25) years to life for a conviction of forgery sustained on January 22, 1998, in the Kings County Superior Court. (Pet. 1.) The sentence was enhanced pursuant to Cal. Pen. code § 667(e) for prior convictions that were apparently sustained in 1984 in Kern County. (Pet. 4.)

Petitioner raises the following claims: 1) the prior convictions used to enhance his 1998 sentence were actually a single prior conviction pursuant to Petitioner's plea agreement in the 1984 case; 2) the Court should accept new evidence concerning the prior convictions that was not available on June 1, 2007;

3) Petitioner was deprived of the benefit of his 1984 plea agreement; and 4) Petitioner's counsel in the 1998 case was ineffective in failing to investigate Petitioner's criminal history and in advising Petitioner to admit a "strike" that he did not have. (Pet. 4-6.)

The present petition is not the first petition filed with respect to the judgment pursuant to which Petitioner is detained. Petitioner admits that this Court was the last court to hear his issue. (Pet. 8.) However, he argues that he has discovered new evidence that was not discoverable through the exercise of due diligence. (Pet. 12.)

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 November 27, 2001, a habeas petition challenging Petitioner's Kings County conviction and sentence was denied on the merits by this Court in Gary Dean Webb v. J. McGrath, no. CIV F-00-7059 HGB P. (Docs. 21, 1-11; 22.) The Court entered judgment for the Respondent. (Doc. 22.)

III. Successive Petition

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. ...


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