FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c)(17). Pending before the court is respondent's September 15, 2010 motion to dismiss this action. Petitioner filed an opposition, and respondent filed a reply.*fn2
Respondent moves to dismiss this action on the grounds that the petition (1) violates Rule 2(e) of the Rules Governing Section 2254 Cases ("Rule"), and (2) was filed beyond the one year limitations period contained in 28 U.S.C. § 2244(d). Additionally, respondent argues that petitioner's first claim for relief should be dismissed as successive under 28 U.S.C. § 2244(b), and that petitioner's second claim for relief should be dismissed for failure to state a cognizable claim.*fn3 The court finds that the petition violates Rule 2(e) because it challenges a 2005 judgment as well as one or more 1990 judgments. The court also finds the petition is successive to the extent it challenges the 2005 judgment, and is barred by the statute of limitations to the extent it challenges one or more 1990 judgments. The court therefore recommends that respondent's motion to dismiss be granted, without leave to amend.
In August 2005, a Shasta County Superior Court jury convicted petitioner of vehicle theft. Resp.'s Mot. to Dismiss ("Mot."), Docs. Lodged in Supp. Thereof ("Lodg. Docs.") 1. Petitioner also pled guilty to possession of a deadly weapon by a prisoner, and two sentencing enhancements for prior convictions or prison terms were found true. Id. On October 17, 2005, the superior court sentenced petitioner to an indeterminate state prison term of thirty-three years to life. Id. Petitioner did not appeal from the judgment of conviction. Mot. at 2.
In the present action, petitioner challenges the 2005 judgment, as
well as two 1990 convictions. See Pet. at 1, 4, 7-16 (explaining
Grounds One and Two of the petition).*fn4 Petitioner
previously challenged the 2005 judgment in federal court. See
Dunckhurst v. Adams, Case No. CIV S-08-0974 WBS DAD P;*fn5
Lodg. Docs. 21, 22.
This court has authority under Rule 4 of the Rules Governing Section 2254 Cases to dismiss a petition if it "plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." As a corollary to that rule, the court may also consider a respondent's motion to dismiss, filed in lieu of an answer, on the same grounds. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as the procedural vehicle to review a motion to dismiss for state procedural default).
A. Claim One Is Successive
The court first addresses respondent's jurisdictional argument that petitioner's first claim for relief, which challenges the Shasta County Superior Court's 2005 judgment, must be dismissed as successive. A petition is second or successive if it makes "claims contesting the same custody imposed by the same judgment of a state court" that the petitioner previously challenged, and on which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007); see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive petition in a district court, a petitioner must obtain from the appellate court "an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Without an order from the appellate court, the district court is without jurisdiction to consider a second or successive petition. See Burton, 549 U.S. 147.
Before commencing this action, petitioner filed a prior federal action in this district. See Dunckhurst v. Adams, Case No. CIV S-08-0974 WBS DAD P, Dckt. No. 1 (May 6, 2008 Petition). In that action, petitioner challenged the Shasta County Superior Court's October 17, 2005 sentence, discussed above. See id. The court dismissed the petition with prejudice on May 29, 2009, as barred by the statute of limitations. Id., Dckt. Nos. 28 (magistrate judge's April 30, 2009 findings and recommendations recommending dismissal), 30 (district judge's May 29, 2009 order adopting findings and recommendations in full); Lodg. Docs. 21, 22. The U.S. Court of Appeals for the Ninth Circuit affirmed the district court's order dismissing the action as time-barred. See Dunckhurst v. Adams, Case No. CIV S-08-0974 WBS DAD P, Dckt. No. 38 (January 10, 2011 Memorandum of Decision of the Court of Appeals for the Ninth Circuit).
The district court's dismissal of the earlier filed petition as untimely constitutes a decision on the merits. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009)("[D]ismissal of a habeas petition as untimely constitutes a disposition on the merits and . . . a further petition challenging the same conviction [is] 'second or successive' for purposes of 28 U.S.C. § 2244(b)."); Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (dismissal of habeas petition as time barred "constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction 'second or successive' petitions under § 2244(b).").
Since claim one of the instant petition challenges the same 2005 judgment that petitioner previously challenged and which was adjudicated on the merits, claim one of the instant petition is second or successive. Petitioner offers no evidence that the appellate court has authorized this court to consider a second or successive claim. This court therefore lacks jurisdiction to consider petitioner's challenge to the 2005 judgment. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam). Respondent's motion to dismiss claim one of the petition must therefore be granted, without leave to amend. See Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted).
B. Claim Two Violates Rule 2(e) of the Rules Governing Section 2254 Cases and Is Untimely
In claim two, petitioner argues that in his 1990 plea agreement cases his counsel was ineffective for failing to inform him of the possibility that convictions in those cases could be used to enhance a future sentence by imposing a life term. Pet. at 4, 7-16. Petitioner has improperly combined these claims into a single petition. A petitioner who seeks relief from multiple judgments must file a separate petition as to each judgment. See Rule 2(e), Rules Governing § 2254 Cases. Because the instant petition challenges a 2005 judgment, and one or more 1990 judgments, it violates Rule 2 and should be dismissed. Moreover, ...