(HC) Kishor v. Unknown ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHANDRA KISHOR, No. 2:19-cv-1556 TLN DB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 UNKNOWN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1999 conviction in the Sacramento 19 Superior Court. Presently before the court is petitioner’s motions to proceed in forma pauperis 20 (ECF Nos. 4, 8), his motion to correct respondents’ names (ECF No. 9), and his petition for 21 screening (ECF No. 3). For the reasons set forth below, the court will grant the motions to 22 proceed in forma pauperis, deny the motion to correct respondents’ names as moot, and 23 recommend that this action be dismissed. 24 IN FORMA PAUPERIS 25 Examination of the in forma pauperis application reveals that petitioner is unable to afford 26 the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 27 28 U.S.C. § 1915(a). 28 //// 1 SCREENING REQUIREMENT 2 I. Legal Standards – Screening 3 The court is required to screen all actions brought by prisoners who seek any form of 4 relief, including habeas relief, from a governmental entity or officer or employee of a 5 governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a habeas petition or portion 6 thereof if the prisoner raises claims that are legally “frivolous or malicious” or fail to state a basis 7 on which habeas relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). This means the court must 8 dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that 9 the petitioner is not entitled to relief[.]” Rule 4 Governing Section 2254 Cases. 10 Rule 11 of the Rules Governing Section 2254 Cases provides that “[t]he Federal Rules of 11 Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these 12 rules, may be applied to a proceeding under these rules.” Drawing on the Federal Rules of Civil 13 Procedure, when considering whether a petition presents a claim upon which habeas relief can be 14 granted, the court must accept the allegations of the petition as true, Erickson v. Pardus, 551 U.S. 15 89, 94 (2007), and construe the petition in the light most favorable to the petitioner, see Scheuer 16 v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than 17 those drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), but “[i]t is well-settled that 18 ‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant 19 habeas relief.’” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 20 F.3d 20, 26 (9th Cir. 1994)). See also Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002) (“Pro 21 se habeas petitioners may not be held to the same technical standards as litigants represented by 22 counsel.”); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“[T]he petitioner is not entitled 23 to the benefit of every conceivable doubt; the court is obligated to draw only reasonable factual 24 inferences in the petitioner’s favor.”). 25 II. The Petition 26 Petitioner seeks to challenge his 1999 conviction and sentence in the Sacramento Superior 27 Court. (Id.) Petitioner indicates that he pled guilty to robbery and attempted murder and was 28 sentenced to seven years-to-life. (Id.) The court’s records reveal that petitioner previously filed 1 several petitions for writ of habeas corpus attacking the same conviction and sentence challenged 2 in this case.1 3 Petitioner’s first habeas petition was filed in this court in June 2003 and denied on the 4 merits in 2007. See Kishor v. Attorney General of CA, No. 03-cv-1219 LKK CMK P, 2007 WL 5 2904237 (E.D. Cal. Oct. 3, 2007), findings and recommendations adopted, 2007 WL 4149327 6 (E.D. Cal. Nov. 19, 2007). The court notes that petitioner has previously challenged his 7 underlying conviction on at least four other occasions: Case No. 2:06-cv-1592 GEB KJM; Case 8 No. 2:08-cv-2028 FCD JFM; Case No. 2:10-cv-3171 LKK KJN; Case No. 2:11-cv-2148. 9 III. Analysis 10 A second or successive application for habeas relief may not be filed in the district court 11 without prior authorization from the Ninth Circuit Court of Appeals. See 28 U.S.C. § 2244(b); 12 Felker v. Turpin, 518 U.S. 651, 656-57 (1996). Prior authorization is a jurisdictional requisite. 13 Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 14 2001) (once district court has recognized a petition as second or successive pursuant to § 2254(b), 15 it lacks jurisdiction to consider the merits). “[A] ‘claim’ as used in § 2244(b) is an asserted 16 federal basis for relief from a state court’s judgment of conviction.” Gonzalez v. Crosby, 545 17 U.S. 524, 530 (2005). “A habeas petition is second or successive only if it raises claims that were 18 or could have been adjudicated on the merits.” McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 19 2009) (citing Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008)). 20 Petitioner is presently challenging his 1999 conviction he challenged in Kishor v. 21 Attorney General of CA, No. 2:03-cv-1219 LKK CMK (P) (E.D. Cal.), which was denied on the 22 merits. Before petitioner can proceed with the instant petition, he must move in, and obtain from, 23 the Ninth Circuit Court of Appeals, an order authorizing the district court to consider the merits of 24 his successive petition. See 28 U.S.C. § 2244(b)(3). Absent such authorization, the instant 25 petition must be dismissed without prejudice. Id. 26 27 1 A court may take judicial notice of its own records and the records of other courts. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 28 118, 119 (9th Cir. 1980). 1 MOTION TO CORRECT RESPONDENTS’ NAMES 2 Petitioner has moved to have the respondent’s name changed from “unknown” to Warden 3 | Neuschmid, the California Department of Corrections and Rehabilitation (CDCR), and Governor 4 | Newsom. (ECF No. 9.) However, because the court has determined that the petition should be 5 | dismissed as successive, the court will deny the motion as moot. 6 IV. Conclusion 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Petitioner’s motions to proceed in forma pauperis (ECF Nos. 4, 8) are granted; and 9 2. Petitioner’s motion to correct respondents’ names (ECF No. 9) is denied as moot. 10 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice 11 | because it is premised on an unauthorized successive petition for writ of habeas corpus under 28 12 US.C. § 2254. 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 15 || after being served with these findings and recommendations, petitioner may file written 16 | objections with the court. The documents should be captions “Objections to Magistrate Judge’s 17 | Findings and Recommendations.” Petitioner is advised that failure to file objections within the 18 | specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 19 | F.2d 1153 (9th Cir. 1991). 20 | Dated: January 21, 2020 22 3 -BORAH BARNES UNITED STATES MAGISTRATE JUDGE 24 25 26 27 DB:12 28 | DB:1/Orders/Prisoner/Habeas/kish1556.sem