(HC) Batton v. Lizarraya ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIO BATTON, No. 2:19-CV-0016-KJM-DMC-P 12 Petitioner, 13 v. ORDER 14 JOE LIZARRAYA,1 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge as provided by Eastern District of California local rules. 20 On July 16, 2019, the magistrate judge filed findings and recommendations, which 21 were served on the parties and which contained notice that the parties may file objections within 22 the time specified therein. Plaintiff filed timely objections to the findings and recommendations. 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 24 this court has conducted a de novo review of this case. Having reviewed the file, the court finds 25 the findings and recommendations to be supported by the record and by proper analysis with 26 respect to the court’s lack of jurisdiction over plaintiff’s successive petition. Because the court 27 28 1 Respondent’s correct name is Joe Lizarraga. 1 does not have jurisdiction over the petition, it need not address the remainder of the issues raised 2 by the magistrate judge with respect to the habeas petition and so the court declines to adopt those 3 findings and recommendations. 4 Furthermore, the magistrate judge dismisses petitioner’s motion to reduce sentence 5 under California Penal Code section 1170(d)(1), ECF No. 11, without explanation. See Finding 6 and Recommendations, ECF No. 7. The motion to reduce sentence is not subject to a successive 7 filing rule. Cf. United States v. Orantes-Arriaga, No. 3:16-CV-02414-MA, 2017 WL 3446289, at 8 *3 (D. Or. Aug. 10, 2017) (no rule barring court’s consideration of second motion to reduce 9 sentence based on 18 U.S.C. § 3582(c)), appeal dismissed, No. 17-35648, 2018 WL 3956617 (9th 10 Cir. May 25, 2018). Accordingly, the court refers the matter back to the magistrate judge for 11 further analysis and discussion on this motion only. 12 Under Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the court 13 has considered whether to issue a certificate of appealability. Before petitioner can appeal this 14 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 15 Where the petition is denied on the merits, a certificate of appealability may issue under 16 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 17 constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 18 appealability indicating which issues satisfy the required showing or must state the reasons why 19 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 20 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 21 jurists of reason would find it debatable whether the district court was correct in its procedural 22 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 23 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 24 2000) (quoting Slack v. McDaniel, 529 U.S. 473 (2000)). 25 In his objections, petitioner argues his habeas petition should not be dismissed as 26 successive because his mental illness prevented him from bringing all of his claims in the first 27 habeas petition. See generally Objs., ECF No. 19. The court may consider a successive petition 28 if plaintiff shows “cause and prejudice,” a standard which mirrors the Supreme Court’s treatment 1 of procedurally defaulted claims. Schlup v. Delo, 513 U.S. 298, 318 (1995). The Ninth Circuit 2 has rejected the argument that a pro se petitioner’s mental condition should establish “cause” for a 3 procedural default, but has also stated the relevant precedent “do[es] not necessarily foreclose the 4 possibility that a pro se petitioner might demonstrate cause in a situation where a mental 5 condition rendered the petitioner completely unable to comply with a state's procedures and he 6 had no assistance.” Schneider v. McDaniel, 674 F.3d 1144, 1154 (9th Cir. 2012). This court has 7 found severe mental illness is sufficient “cause” to overcome procedural default where the 8 petitioner had very limited assistance. See ECF No 114, Chatman v. Hill, No. 2:10-CV-00264- 9 KJM-CKD-P (E.D. Cal. Mar. 15, 2019). Accordingly, the court finds “jurists of reason would 10 find it debatable whether the district court was correct in its procedural ruling” and, for the same 11 reasons, “that jurists of reason would find it debatable whether the petition states a valid claim of 12 the denial of a constitutional right.” Morris, 229 F.3d at 780. Therefore, petitioner has satisfied 13 the requirements for a certificate of appealability on this question. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. The findings and recommendations filed July 16, 2019, are adopted in part, 16 as discussed above; 17 2. Respondent’s motion to dismiss (ECF No. 14) is granted; 18 3. Petitioner’s motion for resentencing (ECF No. 11) is referred back to the 19 magistrate judge for the preparation of findings and recommendations 20 addressing the merits of this motion; 21 4. The court issues a certificate of appealability on the question whether 22 petitioner’s mental illness prevented him from bringing his claims in his 23 first habeas petition; and 24 5. The Clerk of the Court is directed to enter judgment. 25 DATED: September 30, 2019. 26 27 28