United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS AND DENYING
CERTIFICATE OF APPEALABILITY (ECF NO. 9)
CHARLES R. BREYER United States District Judge
a state prisoner incarcerated at San Quentin State Prison,
seeks a writ of habeas corpus under 28 U.S.C. § 2254
invalidating the California Board of Parole Hearings'
(BPH) continued refusal to grant him parole. Per order filed
on August 16, 2016, the court (Kim, M.J.) found that,
liberally construed, the petition states an arguably
cognizable due process claim for relief under § 2254 and
ordered respondent to show cause why a writ of habeas corpus
should not be granted. Respondent instead moves to dismiss
the petition under Rule 4 of the Rules Governing Section 2254
Cases. Petitioner has filed an opposition and respondent has
filed a reply.
case was reassigned to the undersigned after respondent
declined magistrate judge jurisdiction.
was convicted by a Los Angeles County Superior Court jury of
kidnapping for the purpose of robbery, three counts of rape
by force or violence, and three counts of oral copulation in
concert with another. The jury also found true allegations
that he personally used a firearm in the commission of a
felony. On August 1, 1980, petitioner was sentenced to a life
term, plus 15 years and eight months, with the possibility of
parole. BPH or its predecessor has found petitioner not
suitable for parole each time he has appeared for review.
31, 2016, petitioner filed a federal petition for a writ of
habeas corpus challenging BPH's continued refusal to
grant him parole. See Phillips v. Davis, No. C
16-2648 CRB (PR) (N.D. Cal. filed May 31, 2016). On October
11, 2016, the court granted respondent's motion to
dismiss on the grounds that the petition failed to state a
federal habeas claim and was untimely.
13, 2016, petitioner filed the instant federal petition for a
writ of habeas corpus also challenging BPH's continued
refusal to grant him parole, and asserting a new, arguably
cognizable due process claim. Specifically, petitioner claims
that BPH's October 31, 2014 decision to deny him parole
did not comport with due process because BHP did not properly
consider his most recent psychological examination conducted
by Dr. Paul Good.
moves to dismiss the instant petition on the grounds that it
is a second or successive petition, unexhausted, and
procedurally defaulted. The court finds that the petition is
not a second or successive petition; but it need not reach
the other grounds because the underlying claim is clearly
second or successive petition may not be filed in this court
unless the petitioner first obtains from the Ninth Circuit an
order authorizing this court to consider the petition.
See 28 U.S.C. § 2244(b)(3)(A). Respondent
argues that because the instant petition is a second or
successive petition, and petitioner has not obtained the
requisite order authorizing this court to consider the
petition, this court is without jurisdiction. See Burton
v. Stewart, 549 U.S. 147, 153 (2007) (noting that
district court is without jurisdiction to consider second or
successive petition if petitioner does not first receive
authorization from court of appeals). The instant petition,
however, is not a second or successive petition within the
meaning of § 2244(b) because it was filed while the
first petition was still pending in this court. See Woods
v. Carey, 525 F.3d 886, 890 (9th Cir. 2008) (when pro se
petitioner files new petition under § 2254 while
previous petition is still pending, district court should
construe new petition “as a motion to amend [the]
previous habeas petition, ” and not as “a
successive petition under the terms of § 2244”).
Therefore, this court is not without jurisdiction to consider
the arguably cognizable due process claim in the instant
court need not address respondent's additional grounds
for dismissal-nonexhaustion and procedural default-because it
is clear from the record that petitioner does not raise a
colorable federal habeas claim under § 2254.
See 28 U.S.C. § 2254(b)(2) (“An
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the
State.”); see also Cassett v. Stewart, 406
F.3d 614, 623-25 (9th ...