Opinion
Civil No. 03-1179-AS
March 11, 2004
ORDER
In his Findings and Recommendation (Doc. #8), Magistrate Judge Ashmanskas recommended denying this Petition for a Writ of Habeas Corpus on the basis that it is an unauthorized successive petition. 28 U.S.C. § 2244(b)(3)(A). Petitioner filed his Objections to the Findings and Recommendations on December 31, 2003. To date, respondent has filed nothing with regard to the Findings and Recommendation or the underlying petition.
The matter is now before the court pursuant to 28 U.S.C. § 636(b) and the Rules Governing § 2254 Cases, Rule 8, 28 U.S.C.A. foil. § 2254. The court has conducted a de novo review of those portions of the Magistrate Judge's report to which objections have been made. See Rules Governing § 2254 Cases, Rule 8(b)(4), 28 U.S.C.A. foll. § 2254. For the following reasons, the court declines to adopt the Findings and Recommendation.
DISCUSSION
Petitioner attacks his 1990 state conviction for First Degree Rape and Second Degree Kidnapping. Among the bases for relief asserted in the petition, petitioner alleges that his sentence enhancement as a dangerous offender was not tried to a jury and that he did not receive effective assistance of counsel. Petitioner asserts in his Objections to the Findings and Recommendation that he is willing to submit to a DNA test in order to establish his alleged factual innocence. The court makes no determination on these issues but limits its analysis to the procedural issue raised in the Findings and Recommendation.
A successive habeas corpus petition cannot be filed with the district court unless the petitioner has first "move[d] in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). The Magistrate Judge concluded that the current petition is procedurally barred because petitioner had already sought a writ of habeas corpus from this court in Hedrick v. Santos, Civ. No. 03-101-BR (Aug. 12, 2003) ( Hedrick I), and did not obtain the Ninth Circuit's authorization to file a successive petition.
The sole issue before the court is whether the matter in Hedrick I involved a habeas corpus petition that renders the current petition successive. The court finds Hedrick I did not involve an original habeas corpus petition within the meaning of section 2244.
In Hedrick I, petitioner alleged that the state court judge who presided over his sentencing had not filed the correct oath of office with the Oregon Secretary of State, thereby voiding the state judgment. Writing in Hedrick I, Judge Brown found that although petitioner had used the label "writ of habeas corpus," the petition had been mislabeled. Hedrick v. Santos, Civ. No. 03-101-BR, Order at 2 (Aug. 12, 2003) ("[P]etitioner has captioned his cause of action as a petition for a writ of habeas corpus; however, the relief he requests in the petition is the writ of quo warranto."). Judge Brown found that petitioner had "attempted to cloak a civil action involving state law quo warranto and RICO claims, and a possible federal civil rights claim under 42 U.S.C. § 1983, as a petition for a writ of habeas corpus under 28 U.S.C. § 2254." Id. at 4-5.
Judge Brown found that the petition had failed to allege the "fundamental elements of a habeas corpus action." Id. at 5. Notwithstanding Judge Brown's finding that the earlier petition lacked the "essential elements" of a habeas corpus petition and that petitioner had "attempted to cloak" his claims in terms of habeas corpus, the Findings and Recommendation construed the underlying matter as a habeas corpus petition. Findings and Recommendation at 3. The Magistrate Judge concluded that in challenging the state judge's oath of office, petitioner was "challenging his conviction in that action" and seeking to have "petitioner's judgment of conviction [rendered] void." Id. at 2-3.
However, the definition of what constitutes a habeas corpus petition subject to the successive petition bar of section 2244 is relatively narrow:
[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C.A. § 2254
Plaintiffs challenge of the state court's judgment fell outside the scope of the definition set fort in section 2254. In order for the earlier matter to constitute a habeas corpus petition, petitioner would have had to assert one of the bases for relief enumerated in section 2254. Judge Brown found that the petition had failed to allege the "fundamental elements of a habeas corpus action" because the petition did not claim that "his custody is unlawful" or that "he is entitled to immediate or speedier release." Petitioner's allegations regarding the state judge's oath of office did not involve a constitutional deprivation. The court follows Judge Brown's finding that the prior matter lacked the essential elements of a habeas corpus petition. As such, Hedrick I cannot serve as a basis for refusing to entertain the merits of the current petition.
The court notes that petitioner also seeks the appointment of counsel to provide assistance with this collateral attack. The court construes petitioner's request as a Motion for Reconsideration of the Magistrate Judge's Order regarding the appointment of counsel (Doc. #6). The court remands the petition to the Magistrate Judge to evaluate the Motion for Reconsideration in light of this Order.
For the foregoing reasons, the court declines to adopt the Findings and Recommendation.
IT IS SO ORDERED.