United States District Court, E.D. California
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AS SUCCESSIVE (DOC. 1), DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECTING THE CLERK TO CLOSE THE CASE
SHEILA K. OBERTO, Magistrate Judge.
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 his consent in a signed writing filed on February 3, 2014.
Pending before the Court is the petition, which was filed on January 24, 2014.
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 alleges he is serving a sentence of three years imposed in the Fresno County Superior Court in 2013 for conviction of robbery. (Pet., doc. 1, 1-2.) Petitioner challenges the allegedly unconstitutional opening of his legal mail on or about October 29, 2013, at Wasco State Prison, and a loss of documents that occurred when his mail was opened. (Id. at 2-3.)
However, this is not the first petition filed with respect to Petitioner's claims. The Court may take judicial notice of court records and of its own docket. 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).
In Myron Ray Reed v. Jeffrey A. Beard, Dir., et al., case number 1:14-cv-00012-SAB-HC, on January 14, 2014, the Court denied on the merits Petitioner's petition for writ of habeas corpus that challenged the same issue concerning Petitioner's legal mail. (Doc. 1, 2-3.) The Court dismissed the petition on the merits on the ground that the claim concerning mail constituted a claim regarding conditions of confinement that was not cognizable in a proceeding pursuant to 28 U.S.C. § 2254. (Doc. 7.) Petitioner did not file an appeal from the judgment.
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. 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 concerning the same judgment 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 factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B).
However, the district court does not determine whether a second or successive petition meets the requirements which allow a petition 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." A petitioner must, therefore, obtain leave from the Ninth Circuit before a second or successive petition may be filed in the district court. See, Felker v. Turpin , 518 U.S. 651, 656-57 (1996). This Court must dismiss any claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application unless the Court of Appeals has ...