Portee v. Koenig ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVID B. PORTEE, Case No. 19-cv-02948-JD 8 Petitioner, ORDER OF DISMISSAL v. 9 10 KOENIG, Respondent. 11 12 13 Petitioner, a California prisoner, proceeds with a pro se petition for a writ of habeas corpus 14 pursuant to 28 U.S.C. § 2254. The original petition was dismissed with leave to amend and 15 petitioner has filed an amended petition. 16 DISCUSSION 17 STANDARD OF REVIEW 18 The Court may consider a petition for writ of habeas corpus “in behalf of a person in 19 custody pursuant to the judgment of a State court only on the ground that he is in custody in 20 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 21 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 22 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 23 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 24 must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 25 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ 26 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 27 1 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 2 688, 689 (1st Cir. 1970)). 3 LEGAL CLAIM 4 Petitioner was convicted in 1982 and sentenced to life in prison. Am. Pet. at 1. In the 5 original habeas petition, the main argument was that the judges involved with various events in 6 petitioner’s case in 1981 -- his arrest warrant, a search warrant, and a preliminary hearing -- did 7 not have proper oaths of office in place. This was, on its face, a highly doubtful claim, but the 8 Court determined in any event that it appeared to be successive or untimely. The petition was 9 dismissed with leave to amend to address that issue, which is now taken up here. 10 “A claim presented in a second or successive habeas corpus application under section 2254 11 that was not presented in a prior application shall be dismissed . . .” 28 U.S.C. § 2244(b)(2). This 12 is the case unless, 13 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by 14 the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been 15 discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in 16 light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no 17 reasonable factfinder would have found the applicant guilty of the underlying offense. 18 28 U.S.C. § 2244(b)(2). 19 “Before a second or successive application permitted by this section is filed in the district 20 court, the applicant shall move in the appropriate court of appeals for an order authorizing the 21 district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). 22 The Antiterrorism and Effective Death Penalty Act of 1996, which became law on April 23 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus 24 filed by state prisoners. Petitions filed by prisoners challenging noncapital state convictions or 25 sentences must be filed within one year of the latest of the date on which: (A) the judgment 26 became final after the conclusion of direct review or the time passed for seeking direct review; (B) 27 an impediment to filing an application created by unconstitutional state action was removed, if 1 such action prevented petitioner from filing; (C) the constitutional right asserted was recognized 2 || by the Supreme Court, if the right was newly recognized by the Supreme Court and made 3 retroactive to cases on collateral review; or (D) the factual predicate of the claim could have been 4 || discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). A prisoner with a state 5 conviction finalized before April 24, 1996, had until April 24, 1997, to file a federal habeas 6 petition on time. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). 7 Petitioner says that the petition is timely and not successive because he recently discovered 8 that the judges involved in his case in 1981 did not have oaths of office filed with the Secretary of 9 State. The point is not well taken. To start, petitioner has not proffered any evidence showing the 10 || lack of a proper oath. At most, he says he personally hasn’t seen what he considers to be 11 appropriate documentation of the oaths. That is not evidence. Moreover, the facts relevant to the 12 || petition date back to 1981 or before. It is not at clear how any of this is, or could ever be deemed, 5 13 new. 14 That is enough to dismiss the case with prejudice. The Court also notes that, even if the 3 15 petition were proper, it fails to state a viable claim for relief. Petitioner’s argument that there was 16 || anerror under state law does not entitle him to relief because the state courts already denied this 5 17 claim. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot 3 18 || reexamine a state court’s interpretation and application of state law). 19 CONCLUSION 20 The case is DISMISSED and the Clerk is requested to close the file. The Court declines 21 to issue a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 22 IT IS SO ORDERED. 23 Dated: January 6, 2020 24 25 26 JAMES D@MATO United Stftes District Judge 27 28 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 DAVID B. PORTEE, 4 Case No. 19-cv-02948-JD Plaintiff, 5 ‘ V. CERTIFICATE OF SERVICE 5 KOENIG, Defendant. 8 9 . I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 10 District Court, Northern District of California. 11 12 That on January 6, 2020, I SERVED a true and correct copy(ies) of the attached, by 13 placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by 14 depositing said envelope in the U.S. Mail, or by placing said copy(es) into an inter-office delivery 15 receptacle located in the Clerk's office. 16 & = 17 David B. Portee ID: C-50736 CTF - Correctional Training Facility -Soledad Z 18 || P.O. Box 689 Soledad, CA 93960 19 20 2] Dated: January 6, 2020 22 Susan Y. Soong 23 Clerk, United States District Court 24 25 26 LISAR. . Deputy Clerk to the 7 Honorable JAMES DONATO 28