Opinion
1:11-CV-01175 AWI GSA HC
08-02-2011
KENNETH A. FRANK, Petitioner, v. JAMES A. YATES, Warden, Respondent.
FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On July 15, 2011, Petitioner filed the instant petition for writ of habeas corpus in this Court. He challenges his 1989 convictions out of Kern County Superior Court.
DISCUSSION
A. Preliminary Review of Petition
Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:
If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
B. Successive Claim
In the instant petition in his first claim for relief, Petitioner alleges the Kern County Superior Court committed prejudicial error when it destroyed the court reporter's notes of Petitioner's jury trial without complying with relevant California statutes. This claim was raised in a prior federal petition in this Court where it was dismissed for failure to state a cognizable federal claim. See Frank v. Yates, Case No. 1:10-CV-1212 GSA HC. It is therefore successive and must be dismissed. See 28 U.S.C. § 2244(b)(1).
RECOMMENDATION
Accordingly, IT IS HEREBY RECOMMENDED that Ground One be DISMISSED from the petition as successive.
This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days of the date of service of this Findings and Recommendation, Petitioner may file written objections with the Court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The District Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.
Gary S. Austin
UNITED STATES MAGISTRATE JUDGE