United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS FOR DISMISSAL OF
PETITIONER AS SECOND OR SUCCESSIVE COURT CLERK TO ASSIGN
DISTRICT JUDGE (DOC. 1)
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Zane Hubbard, is a state prisoner proceeding pro se
with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. The petition alleges two claims: (1)
“treason and levy by Govern[o]r Edmund G. Brown,
Junior;” and (2) “Governor Jerry Brown has
subjected Mexican American Indian(s) to low intensity warfare
under the “State Justice Institute Act of 1984.”
Because Petitioner has filed two previous habeas petitions
concerning the same conviction, the Court will recommend
dismissing the petition as second or successive.
Procedural and Factual Background
convicted Petitioner of kidnapping to commit robbery,
carjacking for the purpose of kidnapping, assault with a
semiautomatic firearm, criminal threats, active participation
in a criminal street gang, and being a felon in possession of
a firearm. People v. Ramirez, F062512, 2013 WL
943873 (Cal.Ct.App. March 12, 2013). The Kern County Superior
Court sentenced Petitioner to an indeterminate term of 15
years to life in prison and a determinate term of 24 years 4
months. Id. Following a direct appeal, Petitioner
unsuccessfully sought habeas relief in California state
October 23, 2013, Petitioner filed a petition for federal
habeas relief pursuant to 28 U.S.C §2254. Hubbard v.
Seng, No. CV 13-2099-RJT, 2014 WL 1761013 (E.D. Cal.
April 30, 2014). The Court dismissed the petition because
Petitioner's claims were barred by judicial immunity.
Petitioner filed a second § 2254 petition on the same
day. Hubbard v. Gipson, No. 1:13-cv-01758-LJO-JLT,
2016 WL 5341283 (E.D. Cal. Sept. 22, 2016). The Court denied
all of Petitioner's claims. Petitioner filed the
above-captioned petition on February 5, 2018.
of the Rules Governing § 2254 cases requires the Court
to conduct a preliminary review of each petition for writ of
habeas corpus. The Court must dismiss a petition "[i]f
it plainly appears from the petition . . . that the
petitioner is not entitled to relief." Rule 4 of the
Rules Governing 2254 Cases; see also Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 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 to be granted. Jarvis v.
Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
No District Court Jurisdiction Over a Second or
circuit court of appeals, not the district court, must decide
whether a second or successive petition satisfies the
statutory requirements to proceed. 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"). This means that a petitioner may not file
a second or successive petition in district court until the
petitioner has obtained leave from the court of appeals.
Felker v. Turpin, 518 U.S. 651, 656-57 (1996). In
the absence of an order from the appropriate circuit court, a
district court lacks jurisdiction over a petition and must
dismiss the second or successive petition. Greenawalt v.
Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997).
has not secured leave from the Ninth Circuit Court of Appeals
to file the above-captioned petition. Accordingly, the Court
must dismiss the petition for lack of jurisdiction.
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