Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pugh v. Koenig

United States District Court, N.D. California

July 10, 2019

DARRYL PUGH, Petitioner,
v.
C. KOENIG, Respondent.

          ORDER TO SHOW CAUSE

          RICHARD SEEBORG UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         For the 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.

         The operative petition states cognizable claims. (Dkt. No. 16.) Respondent shall file a response to the petition on or before September 16, 2019.

         BACKGROUND

         The 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.

         C 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.

         The 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.)

         DISCUSSION

         This 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).

         As 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.

         The 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).

         The 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.[1]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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.