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Ware v. Chappelle

United States District Court, Ninth Circuit

June 13, 2013

ALLEN KIRK WARE, Petitioner,
v.
WARDEN KEVIN CHAPPELLE, Respondent.

ORDER GRANTING MOTION TO DISMISS; DENYING CERTIFICATE OF APPEALABILITY

LUCY H. KOH, District Judge.

Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging California statutes relating to parole suitability. Respondent has filed a motion to dismiss. Petitioner has filed an opposition. Although given an opportunity, Respondent has not filed a reply. For the reasons stated below, Respondent's motion to dismiss is GRANTED.

BACKGROUND

Petitioner was convicted in 1976 of first degree murder, burglary, and possession of marijuana for sale. (Resp. Ex. 1.) In 1984, Petitioner was found suitable for parole, but on April 21, 1987, Petitioner's parole date was rescinded. (Resp. Ex. 2.) Since that date, Petitioner has received eleven more parole suitability hearings. ( Id. )

In 1998, Petitioner filed a federal petition for writ of habeas corpus in the Eastern District Order Granting Motion to Dismiss; Denying Certificate of Appealability of California. (Resp. Ex. 3.) In that petition, Petitioner claimed that the Board of Parole Hearings' ("Board") 1987 decision to rescind his parole date violated the Ex Post Facto Clause, due process, and the Eighth Amendment. ( Id. ) Ware v. California Board of Prison Terms and Paroles, No. 99-17200, 230 F.3d 1368 (9th Cir. 2000) (unpublished memorandum disposition). After the district court denied the petition, the Ninth Circuit affirmed. ( Id. ) Id.

In 2003, Petitioner filed another federal petition for writ of habeas corpus in the Eastern District of California. (Resp. Ex. 4.) In that petition, Petitioner again claimed that the Board's 1987 decision rescinding his parole date was erroneous because, inter alia: (1) the Board should have applied the indeterminate sentencing laws in effect at the time he committed the crime; (2) the failure to grant parole violated the Eighth Amendment; and (3) the denial of parole violated due process. ( Id. ) The district court dismissed the petition as second or successive. (Resp. Ex. 4.) The Ninth Circuit affirmed the decision, concluding that, even though Petitioner argued that he was challenging a 2001 Board hearing rather than the 1987 Board hearing as he did in his 1998 federal petition (Resp. Ex. 3), the petition was successive. Ware v. Carey, No. 05-16760, 204 Fed.Appx. 657, 658 (9th Cir. 2006) (unpublished memorandum disposition). The Court recognized that none of the claims in Petitioner's 2003 petition were unique to the 2001 Board hearing or reflected any changes in the law, but instead, were related to Petitioner's continued dissatisfaction with the Board's action of rescinding Petitioner's 1987 suitability for parole. Id.

In 2010, Petitioner filed a third federal petition for writ of habeas corpus in the Eastern District of California. (Resp. Ex. 7.) In that petition, Petitioner challenged the Board's 2008 decision denying him parole, arguing that the decision violated the Ex Post Facto Clause because the Board applied the determinate sentencing law rather than the indeterminate sentencing law. ( Id. ) In May 10, 2011, the Eastern District denied the petition. ( Id., Resp. Ex. 8.) The Ninth Circuit subsequently denied the request for a certificate of appealability. (Resp. Ex. 9.)

In 2011, Petitioner filed state habeas petitions in all three levels of state court, challenging the denial of parole suitability in his 2010 Board hearing. (Resp. Exs. 11-16.) On August 3, 2012, Petitioner filed the underlying federal habeas petition.

DISCUSSION

Respondent moves to dismiss Petitioner's petition as successive, untimely, and procedurally defaulted. Petitioner opposes the motion, arguing merely that he should be allowed to proceed because the violations he alleges are "ongoing."

I. Second or Successive Petition

Respondent argues that the Court should dismiss the petition as an unauthorized second or successive petition. A district court must dismiss claims presented in a second or successive habeas petition challenging the same conviction and sentence unless the claims presented in the previous petition were denied for failure to exhaust. See 28 U.S.C. § 2244(b)(1); Babbitt v. Woodford, 177 F.3d 744, 745-46 (9th Cir. 1999). Additionally, a district court must dismiss any new claims raised in a successive petition unless the Petitioner received an order from the Court of Appeals authorizing the district court to consider the petition.

Here, the instant petition does not obviously challenge a specific Board hearing. However, it is clear that Petitioner has previously raised these claims in the Eastern District of California, and the Ninth Circuit has affirmed both the denial of the claims, as well as the dismissal of the claims as second or successive. (Resp. Exs. 3-9.) Because the underlying petition reflects Petitioner's continued dissatisfaction with the Board's action of rescinding Petitioner's 1987 suitability for parole, and Petitioner has not presented an order from the Ninth Circuit Court of Appeals permitting this Court to ...


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