United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
M. COTA UNITED STATES MAGISTRATE JUDGE
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.
State Court Proceedings
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,
Prior Federal Court Habeas Actions
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.
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.
Ninth Circuit Application
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).