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Phillips v. Davis

United States District Court, N.D. California

April 6, 2017

HAROLD PHILLIPS, C-20212, Petitioner,
v.
RON DAVIS, Warden, Respondent.

          ORDER GRANTING MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY (ECF NO. 9)

          CHARLES R. BREYER United States District Judge

         I.

         Petitioner, 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.

         The case was reassigned to the undersigned after respondent declined magistrate judge jurisdiction.

         II.

         Petitioner 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.

         On May 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.

         On July 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.

         III.

         Respondent 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 without merit.

         A.

         A 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 petition.

         B.

         The 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 ...


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