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Carlos Herrera v. Warden Cash

December 23, 2011

CARLOS HERRERA,
PETITIONER,
v.
WARDEN CASH,
RESPONDENT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS THE FIRST AMENDED PETITION (Docs. 23, 14)

FINDINGS AND RECOMMENDATIONS TO DISMISS THE FIRST AMENDED PETITION FOR LACK OF SUBJECT MATTER JURISDICTION (Doc. 14), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE 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 Respondent's motion to dismiss the first amended petition (FAP) as successive and untimely. The motion was filed on October 25, 2011, with supporting documentation. Petitioner filed opposition on November 9, 2011, and Respondent filed a reply with additional documentation on November 29, 2011.

I. Proceeding by a Motion to Dismiss

Respondent has filed a motion to dismiss the petition on the grounds that the petition is successive and that Petitioner filed his petition outside of the one-year limitation period provided for by 28 U.S.C. § 2244(d)(1).

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...."

The Ninth Circuit has allowed respondents to file motions to dismiss pursuant to Rule 4 instead of answers if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss a petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to review a motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). Thus, a respondent may file a motion to dismiss after the Court orders the respondent to respond, and the Court should use Rule 4 standards to review a motion to dismiss filed before a formal answer. See, Hillery, 533 F. Supp. at 1194 & n.12.

Further, a federal court is a court of limited jurisdiction which has a continuing duty to determine its own subject matter jurisdiction and to dismiss an action where it appears that the Court lacks jurisdiction. Fed. R. Civ. P. 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) (citing City of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989).

In this case, Respondent's motion to dismiss addresses the untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1). It also addresses whether the petition is successive, a circumstance that would deprive the Court of subject matter jurisdiction over the petition. The material facts pertinent to the motion are mainly to be found in copies of the official records of state and federal judicial proceedings which have been provided by Respondent and Petitioner, and as to which there is no factual dispute. Because Respondent has not filed a formal answer, and because Respondent's motion to dismiss is similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.

II. Background

In the first amended petition presently pending before the Court, Petitioner challenges his 1995 conviction of possession of a sharp instrument while in prison in violation of Cal. Pen. Code § 4502 on the grounds of the ineffective assistance of counsel and the state's failure to disclose favorable evidence. (Doc. 14, 1-21.)

The Court takes judicial notice of the docket of this Court in Carlos Herrera v. Roy A. Castro, case number 1:99-cv-05591-SMS or CV F 99 5591 SMS P, which reflects that Petitioner filed a previous petition for writ of habeas corpus in this Court on April 28, 1999. *fn1 (Doc. 1.) In the petition, Petitioner challenged his 1995 conviction of possession of a sharp instrument while confined in prison in violation of Cal. Pen. Code § 4502 on the grounds of ineffective assistance of counsel, vagueness of the statute defining the offense, and sentencing error. (Ord. granting mot. to dismiss, doc. 28, 1-2.) On June 9, 2000, the petition was dismissed on the Respondent's motion on the ground that the petition was untimely because filed beyond the statutory limitations period. (Id. at 4-10.) Judgment for the Respondent was entered on June 14, 2000. (Doc. 29.)

III. Dismissal of the Petition as Successive 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. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

Under the AEDPA, a federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. ยง 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 ...


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