United States District Court, E.D. California
ORDER & FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a second amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 302(c), and Local General Order No. 262. In his second amended petition pending before the court it appears that petitioner is attempting to challenge a judgment of conviction and sentence for murder entered by the Yolo County Superior Court against him in 1981. For the following reasons, the undersigned recommends that this action be dismissed as frivolous.
This is petitioner's second federal habeas action filed in this court. (See ECF No. 6 at 1 n.1.) Petitioner's first habeas action was filed on November 18, 1994, in Baker v. Attorney General for the State of California, Case No. 2:94-cv-01892 WBS JFM P. That action was initially dismissed due to petitioner's failure to first exhaust his claims in state court prior to seeking federal habeas relief. However, the Ninth Circuit Court of Appeals vacated the judgment and remanded that case to this court, on the ground that this court lacked jurisdiction over the original petition because petitioner had failed to name his custodian as the respondent. See Baker v. Attorney General for the State of California, 97 F.3d 1458 (9th Cir. 1996) (unpublished). Upon remand, this court dismissed the petition in that earlier filed action with leave to amend. However, petitioner failed to file an amended petition and, accordingly, that habeas action was dismissed on April 10, 1997. See Case No. 2:94-cv-01892 WBS JFM P.
Petitioner commenced the instant habeas action on June 6, 2012. (ECF No. 1.) On April 4, 2013, this court granted his application to proceed in forma pauperis and dismissed the original petition with leave to file an amended petition that clarified petitioner's claims and alleged their exhaustion in the state courts. (ECF No. 6.) On May 28, 2013, petitioner filed an amended petition. (ECF No. 8.) This court dismissed the amended petition for the same reasons, and noted that "the remainder of the amended petition contains only rambling and disjointed statements which do not appear to concern petitioner's judgment of conviction." (ECF No. 11 at 1.) The court granted petitioner leave to file a second amended petition, which it designated "a final opportunity to comply with the court's April 4, 2013 order requiring him to clarify the nature of his federal habeas claims." (Id.)
III. Legal Standards
District courts are required to screen petitions for writ of habeas corpus before requiring the government to file a response. "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, the judge must dismiss the petition and direct the clerk to notify the petitioner." Rule 4, Rules Governing 2254 Cases. See also Gutierrez v. Griggs , 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 "explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated"). "Summary dismissal is appropriate only where the allegations are vague or conclusory or palpably incredible, or patently frivolous or false." Hendricks v. Vasquez , 908 F.2d 490, 491 (9th Cir. 1990) (citations, internal quotation marks and punctuation omitted). Frivolous claims are inherently "clearly baseless, " and include allegations that "describ[e] fantastic or delusional scenarios, " Neitzke v. Williams , 490 U.S. 319, 327, 328 (1989), or alleged facts that are "wholly incredible, " Denton v. Hernandez , 504 U.S. 25, 33 (1992).
IV. Second Amended Petition
In his second amended petition petitioner identifies the following four claims: (1) the failure of the prosecution to disclose petitioner's statement made to arresting officer that, "I don't want to remain silent, ask me in my sleep;'" (2) the refusal of a public defender to help petitioner "get back into municipal court arraignment in camera hypnosis hearing;" (3) the failure of California Court of Appeal to consider petitioner's appeal, but instead "wrote their own appeal;" and (4) "denial of in camera hypnosis reenactments allowed selection of armed robber jury members... whom had previously tried to shoot" petitioner [sic]." (ECF No. 13 at 4-5.)
This court has attempted to identify petitioner's filings in the state courts. The second amended petition alleges that petitioner challenged his 1981 judgment of conviction and sentence on direct appeal, through the California Supreme Court, which denied review on August 13, 1983. (ECF No. 13 at 2.) However, petitioner identifies the "grounds raised" in that appeal only as "the counselor has a copy of the petition in the inmate central file." (Id.) Moreover, this court's review of the dockets in petitioner's cases filed in the California Supreme Court and California Court of Appeal fails to disclose any direct appeals brought on his behalf. It appears that petitioner's only attempt to appeal his conviction was filed in the California Court of Appeal for the Third Appellate District on September 29, 2006, wherein petitioner sought permission to file a constructive notice of appeal. That request was denied on October 5, 2006. See The People v. Baker, California Court of Appeal for the Third Appellate District, Case No. C053766 (docket).
The second amended petition identifies the following attempts by petitioner to obtain collateral review of his conviction. Petitioner states that he filed a petition for writ of habeas corpus in the "Superior Court of California, " on the following ground: "Ask me in my sleep mister court appointed hypnotist because the decedent hypnotically brainwashed me by choking me to death and reviving me and talking to me to kill himself [sic]." (ECF No 13 at at 2-3.) Petitioner avers that he raised the same, albeit slightly reworded, claim in a habeas petition filed with the California Court of Appeal: "Ask me in my sleep mister court appointed hypnotist because the decedent hypnotically brainwashed me by choking me to death and reviving me and talking me into killing him [sic]." ( Id. at 3.) The second amended petition before this court indicates that both state habeas petitions were denied in "1983, 1984, 1985, 1986, 1987, et cetra, " for the following reason: "Denied told to write inmate/parole appeal." (Id.)
The undersigned finds the instant application for federal habeas relief to be frivolous. Three of petitioner's four claims challenge the denial of hypnosis-based evidence by the prosecution, defense and trial court, respectively. Petitioner's claims appear to reflect "fantastic or delusional scenarios, " Neitzke , 490 U.S. at 328, that are "wholly incredible, " Denton , 504 U.S. at 33. Petitioner's fourth claim asserts generally that the Court of Appeal "wrote its own appeal, " and ignored petitioner's unidentified claims. Review of petitioner's other filings in ...