(HC) Bland v. Warden

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 JOSHUA DAVIS BLAND, Case No. 1:22-cv-01171-CDB (HC)

12 Petitioner, FINDINGS AND RECOMMENDATION

TO DISMISS WITH PREJUDICE FIRST

13 v. AMENDED PETITION FOR WRIT OF

HABEAS CORPUS

14 WARDEN, KERN VALLEY STATE

PRISON, (Doc. 9)

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Respondent. Clerk of Court to Assign District Judge

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18 Petitioner Joshua Davis Bland is a state prisoner proceeding pro se with a petition for writ

19 of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before the Court is Bland’s First

20 Amended Petition for Writ of Habeas Corpus. (Doc. 9). For the reasons stated below, the

21 undersigned recommends that this petition be dismissed with prejudice.

22 I. SCREENING OF HABEAS CORPUS PETITIONS

23 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary

24 review of each petition for writ of habeas corpus. The Court must dismiss a petition “[i]f it plainly

25 appears from the petition . . . that the petitioner is not entitled to relief.” Rule 4 of the Rules

26 Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A

27 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

1 (9th Cir. 1971).

2 II. DISCUSSION

3 A. The First Amended Petition is Frivolous

4 Petitioner filed his original 28 U.S.C. § 2254 Petition on September 14, 2022. (Doc. 1).

5 The Court dismissed this Petition for failure to state a cognizable claim and granted Petitioner leave

6 to file an amended petition. (Doc. 6).

7 Petitioner filed his First Amended Petition on December 5, 2022, in which he challenges

8 his March 2014 conviction in Fresno County Superior Court for possession or control of child

9 pornography with a prior offence in violation of California Penal Code Section 311.11(a) & (b),

10 resulting in two 25-years-to-life sentences. (Doc. 9, p. 1). The First Amended Petition is a 95-page

11 document that purports to assert six grounds for relief: 1) Jurisdiction; 2) Due Process; 3)

12 Misrepresentation; 4) Constitutional Impermissible Application of Statutes; 5) Double Jeopardy;

13 6) Fraudulent Surety Bond Attachment. (Id., p. 3). Petitioner includes in his petition references to

14 the Uniform Commercial Code and the “sovereign ‘People’ Magna Carta Grand Jury” (Id., p. 68,

15 70). The First Amended Petition also contains claims that Petitioner was not subject to the state

16 trial court’s jurisdiction. (Id. at 8). Petitioner signed the petition, “Joshua Davis Bland Trust ©”

17 and refers to himself therein as “a private man!” Similarly, on May 3, 2023, Petitioner filed a

18 “Notice of and Writ of Mandate” where he referred to himself as Joshua Davis Bland © in the

19 signature block and appears to profess additional “sovereign citizen” arguments. (Doc. 10).

20 Petitioner previously sought habeas relief in this Court and raised similar claims, including,

21 for instance, in Bland v. Warden, No. 2:21-cv-00518-TLN-DB-P, 2022 WL 1597730 (E.D. Cal.

22 May 19, 2022), F&R adopted by 2022 WL 4359068 (E.D. Cal. Sep. 20, 2022). Petitioner has also

23 unsuccessfully raised such “sovereign citizen” claims in actions he brought pursuant to 42 U.S.C.

24 § 1983. E.g., Bland v. Moffett, No. 1:19-cv-01750-JLT-SKO, 2022 WL 1198382, * 3 (E.D. Cal.

25 Apr. 22, 2022).

26 The Ninth Circuit has held that “sovereign citizen” arguments have “been consistently and

27 thoroughly rejected by every branch of the government for decades. Indeed[,] advancement of such

1 raise them.” United States v. Studley, 783 F.3d 934, 973 n. 3 (9th Cir. 1986).

2 Although couched in varying phrases, the petition solely consists of claims stemming from

3 the sovereign citizen belief that the state court did not have jurisdiction over petitioner in his

4 criminal case. Thus, while Petitioner labels “Ground Two” of his petition as “Due Process of Law”

5 (Doc. 9, p. 7), he elaborates that the “[trial] court, by design, is no longer a constitutional court.”

6 Id. Likewise, Petitioner labels “Ground Three” as “Constitutional Imperissionable [sic]

7 Application of Statute(s),” and explains the claim is supported by the fact that the trial court failed

8 to establish Petitioner is “a party to the Constitution” or that “a contract or agreement” existed. Id.

9 at 8). Claims that an individual is not subject to the laws of the State of California have been

10 repeatedly dismissed by district courts. See Bland, 2022 WL 1597730, at *2 (citing cases).

11 As Petitioner’s claims are similarly based on widely debunked beliefs that have been

12 roundly rejected by courts, the court finds that the petition for writ of habeas corpus in this case is

13 frivolous. Petitioner’s reliance on frivolous gimmicks, despite this Court’s grant of leave to

14 amend his original petition to state a claim, demonstrates that Petitioner is unable to raise a viable

15 claim for relief, and that extending additional opportunities to amend would be futile.

16 Accordingly, the undersigned will recommend that the Petition be dismissed with prejudice. See

17 Jarvis, 440 F.2d at 14.

18 B. The 28 U.S.C. § 2254 Petition is Successive

19 A second or successive application for habeas relief may not be filed in the district court

20 without prior authorization from the Ninth Circuit Court of Appeals. 28 U.S.C. § 2244(b); Felker

21 v. Turpin, 518 U.S. 651, 656-57 (1996). Prior authorization is a jurisdictional requisite. Burton v.

22 Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (once

23 district court has recognized a petition as second or successive petition pursuant to § 2254(b), it

24 lacks jurisdiction to consider the merits). A petition is second or successive if (1) the facts

25 underlying the claim occurred by the time of the initial petition; and (2) the petition challenges the

26 same state court judgment as the initial petition. Brown v. Muniz, 889 F.3d 661, 667 (9th Cir.

27 2018). See also Magwood v. Patterson, 561 U.S. 320 (2010) (defining the terms “second or

1 “A habeas petition is second or successive only if it raises claims that were or could have

2 been adjudicated on the merits.” McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing

3 Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008)). The dismissal of a first § 2254 petition for

4 untimeliness constitutes a “disposition on the merits” and “a further petition challenging the same

5 conviction would be ‘second or successive’ for purposes of 28 U.S.C. § 2244(b).” Id.

6 Petitioner filed an earlier § 2254 petition in August 2018 challenging the same 2014

7 convictions he challenges in the instant petition. See Bland v. Clark, No. 1:18-cv-01141-LJO-EPG,

8 2020 WL 508862 (E.D. Cal. Jan. 31, 2020). The assigned magistrate judge recommended that the

9 petition be dismissed as untimely. Id. at *8. The assigned district judge adopted the findings and

10 recommendation, dismissed the petition as time-barred, and declined to issue a certificate of

11 appealability. See 2020 WL 1862341, at *2.

12 Here, the instant petition is second or successive because the facts underlying the claims

13 asserted occurred by the time of the initial petition (the August 2018 petition), and the instant

14 petition challenges the same state court judgment as the August 2018 petition. See Brown, 889

15 F.3d at 667. Moreover, because the earlier petition (the August 2018 petition) was dismissed as

16 time barred, it is considered a disposition on the merits.

17 Because Petitioner has not shown that he had received prior authorization from the Ninth

18 Circuit Court of Appeals in advance of filing this second and successive petition, the Court lacks

19 jurisdiction over this action, and the Petition must be dismissed. 28 U.S.C. § 2244(b).

20 III. ORDER AND RECOMMENDATION

21 The Clerk of Court is DIRECTED to randomly assign a district judge to this matter.

22 For the foregoing reasons, the Court HEREBY RECOMMENDS that the First Amended

23 Petition be DISMISSED with prejudice as frivolous and successive without prior authorization

24 from the Ninth Circuit Court of Appeals.

25 These Findings and Recommendations will be submitted to the United States District Court

26 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636(b)(1)(B) and Rule

27 304 of the Local Rules of Practice for the United States District Court, Eastern District of

1 objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s

2 | Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling

3 | pursuant to 28 U.S.C. § 636(b)(1)(C). Petitioner is advised that failure to file objections within the

4 | specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d

5 }| 1153 (th Cir. 1991).

6 | IT IS SO ORDERED.

"| Dated: _May 31, 2023 | by

8 UNITED STATES MAGISTRATE JUDGE

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