(HC) Barton v. Gastelo ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 WILLIAM RAY BARTON, No. 2:19-cv-2126 AC P 11 Petitioner, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS 13 JOSIE GASTELO, 14 Respondent. 15 16 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. 18 The petition is related to petitioner’s 1976 conviction in the San Joaquin County Superior 19 Court. ECF No. 1 at 1. However, the petition is sparsely worded and although it is not entirely 20 clear, petitioner appears to challenge the denial of a certificate of appealability by the United 21 States District Court for the Central District of California in Barton v. Superior Court, No. 2:18- 22 cv-6853 FMO RAO.1 Id. at 2-4, 6. 23 Moreover, review of this court’s own records2 demonstrates that petitioner has filed 24 several habeas petitions within the last year and a half, and only the first-filed case, Barton v. 25 1 Review of the petition in that case shows that it was also related to petitioner’s 1976 conviction, 26 though it appears to have been related to consideration for parole rather than the conviction itself. 2 This court may take judicial notice of its own records and the records of other courts. United 27 States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (citations omitted); Fed. R. Evid. 201(b)(2) (court may take judicial notice of facts that are capable of accurate determination by sources 28 whose accuracy cannot reasonably be questioned). 1 Beddick, No. 2:19-cv-0148 MCE DMC, which challenges the same conviction at issue in the 2 instant petition, proceeds on the merits. With the exception of his second-filed petition (Barton v. 3 Biddick, No. 2:19-cv-0465 AC) and most recently filed petition (Barton v. Gastelo, No. 2:19-cv- 4 2322 DMC), which were construed as amended petitions in the first-filed case, the other habeas 5 cases filed by petitioner were dismissed as duplicative.3 6 To the extent petitioner may be attempting to challenge his 1976 conviction, the court 7 finds the instant habeas petition duplicative of Barton v. Beddick, No. 2:19-cv-00148 DMC, and 8 recommends dismissal on that basis. To the extent petitioner may instead be attempting to 9 challenge the Central District’s denial of a certificate of appealability, this court lacks jurisdiction 10 because petitioner must request a certificate of appealability from the Ninth Circuit Court of 11 Appeal, not another district court. See Rule 11(a), 28 U.S.C. foll. § 2254. Because the instant 12 petition does not articulate a cognizable claim, the court declines to construe it as an amended 13 petition in Barton v. Beddick, No. 2:19-cv-00148 DMC. Nor will the court forward the petition 14 to the Ninth Circuit as a request for a certificate of appealability because judgment was entered in 15 Barton v. Superior Court, No. 2:18-cv-6853 FMO RAO, on September 17, 2018, and the petition 16 in this case was not filed until over a year later. See 9th Cir. R. 22-1(d) (request for a certificate 17 of appealability must be made “within 35 days of the filing of a [timely] notice of appeal or 18 amended notice of appeal, or the district court’s denial of a COA in full, whichever is later”). 19 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly 20 assign a United States District Judge to this action. 21 IT IS FURTHER RECOMMEDED that the petition for writ of habeas corpus (ECF No. 1) 22 is dismissed as duplicative of Barton v. Beddick, No. 2:19-cv-00148 DMC, or alternatively for 23 lack of jurisdiction. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 26 27 3 Barton v. Biddick, No. 2:19-cv-1433 CKD; Barton v. San Joaquin, No. 2:19-1740 CKD; Barton v. San Joaquin, No. 2:19-cv-2258 AC; and Barton v. San Joaquin Superior Court, No. 2:19-cv- 28 2262 CKD. MAO 2 APU VME LOUNGE ENN MEO PIO Ne OY VM VI 1 | after being served with these findings and recommendations, petitioner may file written 2 | objections with the court. Such a document should be captioned “Objections to Magistrate 3 | Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 4 | within the specified time may waive the right to appeal the District Court’s order. Martinez v. 5 || Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 | DATED: June 19, 2020 ~ 7 Hthren— Lhar—e- ALLISON CLAIRE 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28