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Hubbard v. Brown

United States District Court, E.D. California

February 16, 2018

ZANE HUBBARD, Petitioner,
v.
EDMUND G. BROWN, Jr., and THE STATE JUSTICE INSTITUTE ACT OF 1984 Respondents.

          FINDINGS AND RECOMMENDATIONS FOR DISMISSAL OF PETITIONER AS SECOND OR SUCCESSIVE COURT CLERK TO ASSIGN DISTRICT JUDGE (DOC. 1)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         Screening Order

         Petitioner, 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.

         I. Procedural and Factual Background

         A jury 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 courts.

         On 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.

         II. Preliminary Screening

         Rule 4 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).

         III. No District Court Jurisdiction Over a Second or Successive Petition

         The 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).

         Petitioner 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.

         III. Certificate of Appealability

         A 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 provides:

(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 ...

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