The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION (Doc. 1)
FINDINGS AND RECOMMENDATIONS TO ) DECLINE TO ISSUE A
CERTIFICATE OF APPEALABILITY AND TO 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. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on April 30, 2013 (doc. 3). Pending before the Court is the petition, which was filed on April 30, 2013.
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; 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 at 491.
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). A 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. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
Petitioner challenges his 2010 conviction in Fresno County Superior Court case number F09906781 of receiving stolen property with enhancements in violation of Cal. Pen. Code §§ 496(a), 667(b) through (i), and 1170.12(a) through (d). (Pet., doc. 1, 1-2.) Petitioner raises issues concerning the accusatory pleading, discovery, the assistance of counsel, jury instructions, sentencing, and the sufficiency of the evidence of the value of the pertinent property.
The Court takes judicial notice of the docket of this Court in Clarence Leon Dews v. Kern Valley State Prison, et al., case number 1:12-cv-00450-AWI-SKO-HC, which reflects that Petitioner filed a previous petition for writ of habeas corpus in this Court on March 12, 2012. *fn1 (Doc. 1.) Petitioner challenged the same conviction he challenges in the instant proceeding. (Pet., doc. 1 at 2, 35; doc. 1-1, 4; Findings and Rec. to Dismiss Pet., doc. 22, 3:8-9.) On August 9, 2012, the petition was dismissed on the ground that Petitioner's allegations did not entitle him to relief in a proceeding pursuant to 28 U.S.C. § 2254. (Fdgs. and Rec., doc. 22, 9-14; Ord. Adopting Fdgs. and Rec., doc. 25, 1-3.) Judgment for the Respondent was entered on August 9, 2012. (Doc. 26.)
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), reh. 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. § 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 fact finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 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 any claim in a second or successive habeas corpus application under section 2254 that was presented in a prior application unless the Court of Appeals has given Petitioner leave to file the petition. 28 U.S.C. § 2244(b)(1). This limitation is jurisdictional. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001).
A habeas petition is second or successive only if it raises claims that were or could have been adjudicated on the merits. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). A disposition is "on the merits" if the district court either considered and rejected the claim, or determined that the underlying claim would not be considered by a federal court. McNabb v. Yates, 576 F.3d at 1029 (citing Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990)). A dismissal for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) is a judgment on the merits. Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981). A dismissal of a § 2254 petition because it does not state a claim for habeas relief is a dismissal on the merits for the purpose of 28 U.S.C. § 2244. Dellenbach v. Hanks, 76 F.3d 820, 822-23 (7th Cir. 1996) (distinguishing between a dismissal for failure to state a claim and a dismissal because insufficient substantiation of a claim was provided); see, Williams v. Armontrout, 855 F.2d 578, 580 (8th Cir. 1988) (dismissal for legal insufficiency, or not stating facts constituting a violation of constitutional rights as a matter of law, is a decision on the merits); cf., Del Campo v. Kennedy, 491 F.Supp.2d 891, 902 (N.D.Cal. 2006), aff'd., Del Campo v. Kennedy, 517 F.3d 1070 (9th Cir. 2008) (citing Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3 (1981), and noting that historically, courts have considered a dismissal of a civil claim with prejudice for failure to state claim to be a dismissal on the merits for res judicata purposes); Arreola v. Board of Prison Hearings, 2012 WL 4862540, *2 (No. 2:11-cv-1974-DAD P, E.D.Cal. Oct. 11, 2012) (unpublished) (a Rule 60(b) motion to reconsider the dismissal of the petition for failure to state a cognizable claim is a decision on the merits which requires the petitioner to seek authority to proceed from the Court of Appeals for the Ninth Circuit); Harris v. Copenhaver, 2012 WL 2553635, *3 (No. 1:12-cv-00938-AWI-DLB (HC), E.D.Cal. June 29, 2012) (unpublished) (a petition brought pursuant to § 2241 barred by § 2244(a) as successive because a previous petition including the same claim was dismissed for failure to state a cognizable claim).
Here, the disposition of the first petition concerning the same state court decision constituted a decision on the merits. Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file his successive petition attacking the conviction. The Ninth Circuit Court of Appeals, and not this Court, must determine ...