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Manley v. Davey

United States District Court, E.D. California

June 28, 2019

NABIL IBN MANLEY, Petitioner,
v.
DAVE DAVEY, Respondent.

          FINDINGS AND RECOMMENDATIONS

          DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss (ECF No. 15). Respondent argues the instant petition must be dismissed because it is second or successive and was filed without prior authorization from the Ninth Circuit Court of Appeals.

         I. BACKGROUND

         A. State Court Proceedings

         This action proceeds on the original petition. Petitioner was convicted in the Sacramento County Superior Court on October 5, 1995, in case no. CR116346 and later sentenced to a term of 83 years to life. See ECF No. 1, pg. 1. The California Court of Appeal affirmed the conviction and sentence on September 25, 1997, see id. at 2, and the California Supreme Court denied review on January 1, 1999, see id. Petitioner did not seek direct review in the United States Supreme Court. See ECF No. 1, pg. 3.

         B. Prior Federal Court Habeas Actions

         Petitioner filed a prior action, Manley v. Knowles, et al., E. Dist. Cal. Case No. 2:01-CV-1608-FCD-PAN (Manley I). See id. at 5. Taking judicial notice of this court's file in the prior case, see Chandler v. U.S., 378 F.2d 906, 909 (9th Cir. 1967), the court observes the prior action was voluntarily dismissed by petitioner, see ECF No. 13 in Manley I. Petitioner filed a second prior petition in this court, Manley v. Campbell, et al., E. Dist. Cal. Case No. 2:03-CV-0030-KJS (Manley II). See ECF No. 1, pg. 5. Again taking judicial notice, the court observes Manley II challenged the same 1995 Sacramento County Superior Court conviction and sentence and was denied on the merits. See ECF No. 22 in Manley II. The Ninth Circuit Court of Appeals denied a certificate of appealability with respect to this judgment. See ECF Nos. 31 and 42 in Manley II.

         Petitioner filed a third habeas corpus action in this court, Manley v. Davey, E. Dist. Cal. Case No. 2:14-CV-1340-TLN-CMK (Manley III). Once again taking judicial notice, the court observes Manley III challenged the same conviction and sentence and was dismissed as a second or successive petition filed without prior authorization from the Ninth Circuit Court of Appeals. See ECF Nos. 24 and 25 in Manley III. Petitioner did not appeal.

         C. Ninth Circuit Application

         In 2016, petitioner filed an application in the Ninth Circuit Court of Appeals for leave to file a second of successive petition in the district court. See ECF No. 1, pgs. 15-16. The Ninth Circuit denied the application. See id. The appellate court stated:

We have considered the application for authorization to file a second or successive 28 U.S.C. § 2254 habeas corpus petition in the district court raising a claim for relief under Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the applicant's September 14, 2017, submission, the state's response, and the reply. We are now aware that the applicant received a parole hearing on February 3, 2015, thereby remedying the alleged Miller violation. See Montgomery, 136 S.Ct. at 736 (“A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole. . . .”). We, therefore, deny the application because the applicant has not made a prima facie showing for relief under 28 U.S.C. § 2244(b)(2).
To the extent the applicant contends that the youthful offender parole process adopted in California and utilized at the February 3, 2015, parole hearing is an inadequate remedy under Miller, authorization is unnecessary. See United States v. Buenrostro, 638 F.3d 720, 725 (9th Cir. 2011) (“Prisoners may file second-in-time petitions based on events that do not occur until a first petition is concluded.”). We, however, express no opinion as to the merits of such a claim or whether the procedural requirements of 28 U.S.C. § 2244(d) and 2254 are satisfied.
ECF No. 1, pgs. 15-16 (Ninth Circuit order).

         D. Current ...


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