United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT COURT DISMISS
PETITION FOR LACK OF JURISDICTION ECF No. 1
Zane Hubbard, a state prisoner without counsel, has been
sentenced to a term of 39 years to life, following his
conviction for multiple gang-related offenses, including
kidnapping, carjacking, and robbery. See Hubbard v.
Gipson, No. 1:13-cv-1758, 2016 WL 5341283, at *1 (E.D.
Cal. Sept. 22, 2016). Following his conviction, petitioner
has filed more than two hundred petitions in state and
federal courts, ECF No. 1 at 9, for a wide variety of
matters, ranging from alleged treason by the governor of
California to alleged attempted sterilization by prison
staff. See Nos. 1:18-cv-181, 1:19-cv-132,
1:19-cv-287. In this case, the court has received another
petition for writ of habeas corpus from petitioner, in which
he does not challenge the legality of custody. ECF No. 1.
Petitioner alleges that his complaints filed in state and
federal courts, grievances filed in prison, and “grand
jury complaint[s]” have gone unanswered. Id.
at 6, 8-10. This allegation is untrue. Petitioner has
litigated habeas claims on the merits before this court.
See Hubbard, 2016 WL 5341283, at *1. Judicial
opinions in dozens of cases indicate that judges in this
district have given petitioner’s claims fair
consideration. See, e.g., Hubbard v.
Kings Cty., No. 1:19-cv-132, 2019 WL 3842822 (E.D. Cal.
Aug. 15, 2019); Hubbard v. Stainer, No. 1:19-cv-601,
2019 WL 2464776 (E.D. Cal. June 13, 2019); Hubbard v.
State Justice Inst. Act of 1984, No. 1:19-cv-613, 2019
WL 2464797 (E.D. Cal. June 13, 2019); Hubbard v.
Brown, No. 1:18-cv-181, 2018 WL 953167 (E.D. Cal. Feb.
matter is before the court for screening under Rule 4 of the
Rules Governing Section 2254 Cases. Under Rule 4, the judge
assigned to the habeas proceeding must examine the habeas
petition and order a response to the petition unless it
“plainly appears” that the petitioner is not
entitled to relief. See Valdez v. Montgomery, 918
F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147
F.3d 1124, 1127 (9th Cir. 1998). The rule allows courts to
dismiss petitions that are patently frivolous, vague,
conclusory, palpably incredible, or false. See Hendricks
v. Vasquez 908 F.2d 490, 491 (9th Cir. 1990).
recommend that the court dismiss the case at screening.
Petitioner’s sole claim is that unidentified state
actors have violated his due process rights because he has
been denied access to courts. Although the alleged denial of
access to courts may concern some habeas claims he litigated
in the past, the petition in this case does not explain how
his custody violates federal law Without such an argument,
the success of the petition cannot result in speedier release
of petitioner, so this court lacks jurisdiction and cannot
grant habeas relief. See Nettles v. Grounds, 830
F.3d 922, 934 (9th Cir. 2016). If petitioner wishes to
litigate his claim, he must file a Section 1983 complaint,
see id., and the complaint must contain allegations
that would withstand screening, see 28 U.S.C. §
1915A(a) and Fed.R.Civ.P. 8.
court should decline to convert the petition into a Section
1983 complaint. Petitioner has three strikes under the Prison
Litigation Reform Act, Hubbard v. United States of
America, No. 1:14-cv-905, ECF No. 6 (E.D. Cal. June 30,
2014), so he must either satisfy the imminent-danger
exception or pay the full filing fee. See Andrews v.
Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).
Petitioner has done neither. Furthermore, his allegations are
petitioner seeking a writ of habeas corpus has no absolute
right to appeal a district court’s denial of a
petition; he may appeal only in limited circumstances.
See 28 U.S.C. § 2253; Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing
Section 2254 Cases requires a district court to issue or deny
a certificate of appealability when entering a final order
adverse to a petitioner. See also Ninth Circuit Rule
22-1(a); United States v. Asrar, 116 F.3d 1268, 1270
(9th Cir. 1997). A certificate of appealability will not
issue unless a petitioner makes “a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). This standard requires the petitioner to
show that “jurists of reason could disagree with the
district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed
further.” Miller-El, 537 U.S. at 327; see
Slack v. McDaniel, 529 U.S. 473, 484 (2000). The
petitioner must show “something more than the absence
of frivolity or the existence of mere good faith.”
Miller-El, 537 U.S. at 338.
jurists would not disagree that the petition here is an
unauthorized successive petition and that it should not
proceed further. Thus, the court should decline to issue a
certificate of appealability.
recommend that the court dismiss the petition for a writ of
habeas corpus, ECF No. 1, for lack of jurisdiction and
decline to issue a certificate of appealability.
findings and recommendations are submitted to the U.S.
District Court Judge presiding over this case under 28 U.S.C.
§ 636(b)(1)(B) and Rule 304 of the Local Rules of
Practice for the United States District Court, Eastern
District of California. Within fourteen days of the service
of the findings and recommendations, any party may file
written objections to the findings and recommendations with
the court and serve a copy on all parties. That document must
be captioned “Objections to Magistrate Judge’s