United States District Court, E.D. California
MARIO A. MELCHIONNE, Petitioner,
CHRISTIAN PFEIFFER, Warden, Respondent.
FINDINGS AND RECOMMENDATION THAT THE COURT DISMISS
THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 16)
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Mario A. Melchionne is a state prisoner proceeding pro
se with a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. Respondent Christian Pfeiffer, Warden,
Kern Valley State Prison, moves to dismiss the petition,
contending (1) the petition impermissibly seeks relief with
regard to separate judgments of conviction; (2) grounds one
and two of the petition are second or successive claims; and
(3) grounds one and two are untimely. Because the petition
impermissibly seeks relief on two separate judgments, the
undersigned recommends that the Court dismiss the petition on
Procedural and Factual Background
Orange County Superior Court in 1997, a jury convicted
Petitioner of (1) receiving stolen property (Cal. Penal Code
§ 496(a)); (2) possession of a firearm by a felon (Cal.
Penal Code § 12021(a)); and (3) possession of a
controlled substance (Cal Penal Code § 11377(a)). On
October 1, 1997, the Orange County court sentenced Petitioner
to a term of 25 years to life imprisonment. The record
includes few materials regarding any post-conviction
litigation of the Orange County convictions except for the
April 29, 2014, letter to Petitioner from attorney Patrick
DuNah, reporting that the California Court of Appeal for the
Fourth District had denied Petitioner's
2005, Petitioner, who was still serving his sentence for the
1997 convictions, killed another inmate. In Kings County
Superior Court on January 11, 2007, Petitioner pleaded guilty
to one charge of first degree murder pursuant to California
Penal Code § 187(a). On February 22, 2007, the Kings County
court sentenced Petitioner to a term of 75 years to life
imprisonment to be served consecutive to the Orange County
his Kings County conviction, Petitioner filed multiple
petitions for habeas corpus in state and federal courts. In
the Eastern District of California, the petitions included
Melchionne v. Tilton (No. 1:08-cv-00116-DMS-BLM HC);
Melchionne v. Tilton (No. 1:08-cv-00688-VRW HC); and
Melchionne v. Tilton (No. 1:08-cv-00863-TAG HC).
Petitioner has not sought leave of the Ninth Circuit Court of
Appeals to bring a second or successive petition as to
grounds one and two, which relate to the Kings County
judgment of conviction. See 28 U.S.C.
§2244(b)(3)(A) ("Before a second or successive
petition 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").
Claims Relate to Multiple Cases
petitioner who seeks relief from judgments of more than one
state court must file a separate petition covering the
judgments covering the judgment or judgments of each
court." Rule 2(e), Rules Governing Section 2254 Cases in
the United States District Courts. In the above-captioned
petition, grounds one and two relate to the Kings County
conviction, and ground three relates to the Orange County
conviction. Accordingly, the petition violates Rule 2(e) and
must be dismissed. See Dunckhorst v. Lopez, 2011 WL
3687651 at *3 (E.D.Cal. Aug. 23, 2011) (No.
Certificate of Appealability
petitioner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his
petition, but may only appeal in certain circumstances.
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
The controlling statute in determining whether to issue a
certificate of appealability is 28 U.S.C. § 2253, which
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the validity of such person's detention pending
(c) (1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to
the court of appeals from-
(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued ...