Israel v. Ndoh ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MAX LEE ISRAEL, Case No. 20-cv-04347-PJH 8 Petitioner, ORDER OF DISMISSAL v. 9 10 R. NDOH, Respondent. 11 12 13 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus 14 pursuant to 28 U.S.C. § 2254. The petition was dismissed with leave to amend to 15 demonstrate why the petition is not successive. 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 19 in custody pursuant to the judgment of a State court only on the ground that he is in 20 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 21 § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 22 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 23 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 24 pursuant to a judgment of a state court must “specify all the grounds for relief available to 25 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 26 Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the 27 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 1 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 2 1970)). 3 LEGAL CLAIM 4 Petitioner presents claims regarding his 2005 conviction. However, the court 5 already denied a habeas petition regarding this conviction. See Israel v. Evans, No. 09- 6 0650 PJH. The court also denied a habeas petition regarding a 2013 resentencing for 7 the same conviction. See Israel v. Wofford, No. 16-2826 PJH. 8 “A claim presented in a second or successive habeas corpus application under 9 section 2254 that was not presented in a prior application shall be dismissed . . .” 28 10 U.S.C. § 2244(b)(2). This is the case unless, 11 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on 12 collateral review by the Supreme Court, that was previously unavailable; or 13 (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due 14 diligence; and (ii) the facts underlying the claim, if proven and viewed 15 in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for 16 constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 17 28 U.S.C. § 2244(b)(2). 18 “Before a second or successive application permitted by this section is filed in the 19 district court, the applicant shall move in the appropriate court of appeals for an order 20 authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). 21 Petitioner has not shown that he has received authorization from the Ninth Circuit 22 to proceed with this case. The petition is dismissed but petitioner may refile the petition if 23 he receives permission from the Ninth Circuit. 24 CONCLUSION 25 1. The petition is DISMISSED for the reasons set forth above. A certificate of 26 appealability is DENIED. 27 1 2. The clerk shall close this action. 2 IT IS SO ORDERED. 3 Dated: August 17, 2020 4 5 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27