United States District Court, N.D. California
ORDER TO SHOW CAUSE
RICHARD SEEBORG UNITED STATES DISTRICT JUDGE
fifth time, petitioner seeks federal habeas relief from his
2001 state convictions. The petition for habeas relief is now
before the Court for review pursuant to 28 U.S.C. § 2243
and Rule 4 of the Rules Governing Section 2254 Cases.
operative petition states cognizable claims. (Dkt. No. 16.)
Respondent shall file a response to the petition on or before
September 16, 2019.
instant suit is not petitioner's first federal challenge
to his state convictions. Petitioner has filed at least four
other habeas suits in this Court. The first was dismissed as
partially unexhausted. Pugh v. Runnels, No. C
04-04241 VRW, Dkt. No. 10. The second was dismissed as
untimely. Pugh v. Felkner, No. C 07-03579 VRW, Dkt.
No. 10. The third was dismissed because petitioner failed to
pay the filing fee. Pugh v. Grounds, No.
16-05126 RS, Dkt. No. 7. The fourth was dismissed as second
or successive. Pugh v. Hatton, No. C 17-01400 RS,
Dkt. No. 5. It appears that after this dismissal, petitioner
filed a request with the Ninth Circuit for permission to file
a second or successive petition. The request was denied as
unnecessary. Id., Dkt. No. 7. Petitioner had
obtained a new judgment from the state court - the result of
his petitioning for resentencing under a new state law.
Id. A new judgment allowed petitioner to file a new
petition without permission from the appellate court.
Id. Therefore, the instant habeas action is not
barred by the rule against second or successive petitions.
“[A] numerically second habeas petition challenging a
judgment imposed after resentencing was not ‘second or
successive' under the AEDPA, where the first habeas
petition was filed prior to resentencing and challenged the
original judgment.” Wentzell v. Neven, 674
F.3d 1124, 1126-1127 (9th Cir. 2012) (citing Magwood v.
Patterson, 561 U.S. 320, 339 (2010)). Under this
standard, the Court will allow the petition to proceed. The
petition remains open to other procedural challenges, which
are discussed below.
current and prior petitions are challenges to
petitioner's 2001 state convictions for the possession of
cocaine base for sale; possession of cocaine base and
maintaining a place for narcotics activities; resisting
arrest; and attempted destruction of evidence. (Am. Pet.,
Dkt. No. 12 at 1.) A sentence of 31 years to life was imposed
for these convictions. (Id.)
Court may entertain a petition for writ of habeas corpus
“in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). A
district court considering an application for a writ of
habeas corpus shall “award the writ or issue an order
directing the respondent to show cause why the writ should
not be granted, unless it appears from the application that
the applicant or person detained is not entitled
thereto.” 28 U.S.C. § 2243. Summary dismissal is
appropriate only where the allegations in the petition are
vague or conclusory, palpably incredible, or patently
frivolous or false. See Hendricks v. Vasquez, 908
F.2d 490, 491 (9th Cir. 1990).
grounds for federal habeas relief, petitioner claims (1)
defense counsel rendered ineffective assistance in the ways
discussed in the petition; and (2) there was cumulative
error. When liberally construed, these claims are cognizable
on federal habeas review.
parties should be aware of the following. The petition is
open to various procedural challenges, even though it is not
barred by the rule against second or successive petitions. In
allowing the petition to proceed, the Court keeps in mind
that Magwood eliminated only one procedural bar (the
second or successive rule) and then eliminated it only in
narrow instances. Other procedural bars were unaffected by
Magwood. “Here, we underscore . . . that
procedural-default rules continue to constrain review of
claims in all applications, whether the applications are
‘second or successive' or not.”
Magwood, 561 U.S. at 340. The Court notes that the
petition in Wentzell, which survived an initial
dismissal motion because of Magwood, eventually was
dismissed as procedurally defaulted. Wentzell v.
Neven, No. 2:10-cv-01024-RLH-GWF, 2015 WL 1344786 (D.
Nevada Mar. 23, 2015).
result was the same in a prior case before this Court.
Moore v. Macomber, 15-cv-04269-RS. The Court had
denied petitioner's prior federal habeas
petition.Id., Dkt. No. 19 at 1. His appeal
of that decision was unsuccessful. Id. at 2.
Petitioner later obtained a new state court judgment.
Id. This allowed the petitioner in Moore,
like the current petitioner, to file a petition immune from
the rule against second or successive petitions. Id.
This new ...