(HC) Jackson v. Borla ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DOUGLAS V. JACKSON, No. 1:24-cv-00143-HBK (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION TO 14 EDWARD BORLA, Warden, DISMISS PETITION FOR FAILURE TO STATE A CLAIM1 15 Respondent. FOURTEEN-DAY OBJECTION PERIOD 16 (Doc. No. 1) 17 18 Petitioner Douglas V. Jackson (“Petitioner”), a state prisoner, is proceeding on his pro se 19 petition for writ of habeas corpus under 28 U.S.C. § 2254 docketed on February 1, 2024. (Doc. 20 No. 1, “Petition”). This matter is before the Court for preliminary review. See Rules Governing 21 § 2254 Cases, Rule 4; 28 U.S.C. § 2243. For the reasons set forth below, the Court recommends 22 that the Petition be DISMISSED for failure to state a cognizable habeas claim. 23 I. BACKGROUND 24 Petitioner is serving an indeterminate 48-year-to-life sentence stemming from his 25 December 1, 2008 conviction for Attempted Murder of a Peace Officer, Attempted 2nd Degree 26 Robbery, Felony Evading with Firearm, Second Degree Robbery, Assault with Firearm, and 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 Felon in Possession. (Doc. No. 1 at 1). The Petition raises two grounds for relief: (1) the Clerk 2 of Court for the Ninth Circuit Court of Appeals failed to timely notify Petitioner that his petition 3 for a writ of certiorari was denied on May 15, 2017; and (2) the Ninth Circuit Court of Appeals 4 “failed to address” this same claim (ground one) raised by Petitioner in his petition for writ of 5 habeas corpus that he filed directly with the Ninth Circuit on October 2, 2023 (Case No. 23- 6 2614), instead issuing an order December 15, 2023 finding the claim not cognizable. (Doc. No. 1 7 at 4-6). Plaintiff attaches a copy of the Ninth Circuit’s December 15, 2023 order entered in Case 8 No. 23-2614 as an exhibit to his Petition. (Id. at 23-24). It is unclear from the face of the Petition 9 the nature of the relief Petitioner seeks. 10 II. APPLICABLE LAW AND ANALYSIS 11 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 12 review of each petition for writ of habeas corpus. The Court must dismiss a petition “[i]f it 13 plainly appears from the petition . . . that the petitioner is not entitled to relief.” Rule 4 of the 14 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 15 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 16 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 17 dismiss, or after an answer to the petition has been filed. Courts have “an active role in 18 summarily disposing of facially defective habeas petitions” under Rule 4. Ross v. Williams, 896 19 F.3d 958, 968 (9th Cir. 2018) (citation omitted). However, a petition for habeas corpus should 20 not be dismissed without leave to amend unless it appears that no tenable claim for relief can be 21 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 22 A. Failure to State a Cognizable Claim 23 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2241(c)(3) 24 provides that the writ of habeas corpus shall not extend to a prisoner unless “[h]e is in custody in 25 violation of the Constitution or laws or treaties of the United States.” The Supreme Court has 26 held that “the essence of habeas corpus is an attack by a person in custody upon the legality of 27 that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). If a prisoner’s claim “would 28 necessarily demonstrate the invalidity of confinement or its duration,” a habeas petition is the 1 appropriate avenue for the claim. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005 2 Here, any relief on Petitioner’s claims would not lead to his immediate or earlier release. 3 See Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (if a favorable judgment for the 4 petitioner would not “necessarily lead to his immediate or earlier release from confinement,” a 5 habeas claim is not appropriate). Petitioner does not directly challenge his 2008 conviction or 6 sentence. Rather, the gravamen of his claims is that he was not timely notified by the Clerk for 7 the Ninth Circuit that his petition for certiorari to the United States Supreme Court was denied. 8 (Doc. No. 1 at 4-6).2 Petitioner’s claims are clearly not cognizable via a petition for writ of 9 habeas corpus. Indeed, as acknowledged by Petitioner, he filed a separate § 2254 petition raising 10 this same claim directly with the Ninth Circuit that was docketed at Case No. 23-2614. In 11 declining transfer of the petition to this Court pursuant to Fed. R. App. P. 22(a), the Ninth Circuit 12 noted that Petitioner “is not raising claims that can be brought in federal habeas corpus.” (Id. at 13 23-24). Arguably, Petitioner is asking this Court to reconsider the Ninth Circuit’s summary 14 rejection of his petition for writ of habeas corpus. This Court does not have jurisdiction to 15 reconsider the Ninth Circuit’s summary dismissal of his petition. 16 Based on the foregoing, the undersigned recommends the Petition be dismissed for failure 17 to state a cognizable claim, as it appears that no tenable claim for relief can be pleaded were leave 18 to amend be granted. 19 III. CERTIFICATE OF APPEALABILITY 20 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 21 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 22 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 23 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a 24 certificate of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 25 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court 26 2 The Court takes judicial notice of its files. Petitioner, who was represented by counsel, previously filed a 27 petition for writ of habeas corpus in this court on August 7, 2013, which was denied on June 11, 2015. See Case No. 1:13-cv-01296-LJO-MJS (Doc. Nos. 1, 34-35). Petitioner appealed and the Ninth Circuit denied 28 Petitioner a certificate of appealability February 16, 2016. (Doc. Nos. 36, 40). 1 | denies habeas relief on procedural grounds without reaching the merits of the underlying 2 | constitutional claims, the court should issue a certificate of appealability only “if jurists of reason 3 | would find it debatable whether the petition states a valid claim of the denial of a constitutional 4 | right and that jurists of reason would find it debatable whether the district court was correct in its 5 | procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 6 | is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 7 | could not conclude either that the district court erred in dismissing the petition or that the 8 || petitioner should be allowed to proceed further.” Jd. Here, reasonable jurists would not find the 9 | undersigned’s conclusion debatable or conclude that petitioner should proceed further. The 10 | undersigned therefore recommends that a certificate of appealability not issue 11 Accordingly, it is ORDERED: 12 The Clerk of Court shall randomly assign this case to a district judge. 13 Further, it is RECOMMENDED: 14 1. The Petition (Doc. No. 1) be DISMISSED for failure to state a cognizable claim. 15 2. Petitioner be denied a certificate of appealability. 16 NOTICE TO PARTIES 17 These findings and recommendations will be submitted to the United States district judge 18 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 19 || days after being served with these findings and recommendations, a party may file written 20 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 21 | Findings and Recommendations.” Parties are advised that failure to file objections within the 22 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 23 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). ** | Dated: _ February 20,2024 Mihaw. Wh. foareh fackte 25 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 27 28