courts have duty to construe pro se pleadings liberally
How later courts described this case
- courts have duty to construe pro se pleadings liberally
- explaining that Tollett bars 8 any double jeopardy claim where petitioner pleaded guilty unless petitioner 9 alleges and proves that plea was not knowing and voluntary
- district court may decline to consider new allegations 17 presented for the first time in objections
- “Arguments raised for the first time in [a habeas] petitioner's reply brief are deemed waived.”
Written by the judges who cited it.
The opinion
Case 2:20-cv-11167-JVS-PD Document 26 Filed 01/31/22 Page 1 of 4 Page ID #:358
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 MOSES CLARK, Case No. 2:20-cv-11167-JVS-PD
12 Petitioner, ORDER (1) ACCEPTING
FINDINGS, CONCLUSIONS,
13 v.
AND RECOMMENDATION OF
14 HEATHER SHIRLEY, WARDEN, UNITED STATES
MAGISTRATE JUDGE AND (2)
15 Respondent.
DENYING REQUEST FOR
16 EVIDENTIARY HEARING
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The Court has reviewed the First Amended Petition, records on file, and
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Report and Recommendation of the United States Magistrate Judge, which
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recommends that judgment be entered denying the First Amended Petition
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and dismissing the action with prejudice. See 28 U.S.C. § 636(b)(1). On
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December 6, 2021, Petitioner filed a pleading that he captioned as a traverse.
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[See Dkt. No. 24.] Despite the caption, the December 6, 2021 filing appears to
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be Petitioner’s objections to the Report. Although it does not explicitly
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mention the Report, it repeatedly references the Report’s analysis and
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appears to duplicate its language. [See, e.g., Dkt. No. 24 at 1, 6, 17.]
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Moreover, there is no reason to believe that Petitioner intended the December
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6, 2021 filing to be a traverse because Respondent never answered either the
Case 2:20-cv-11167-JVS-PD Document 26 Filed 01/31/22 Page 2 of 4 Page ID #:359
1 Petition or the First Amended Petition; rather, the Report was issued after
2 Petitioner had several chances to respond to the Court’s Order to Show Cause.
3 [See Dkt. Nos. 8, 12, 17.] As such, the Report was the only matter on the
4 docket to which the December 6, 2021 filing could have responded.
5 Accordingly, the Court liberally construes Petitioner’s December 6, 2021 filing
6 as his Objections to the Report. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th
7 Cir. 2001) (courts have duty to construe pro se pleadings liberally). On
8 December 8, 2021, Petitioner filed a request for an evidentiary hearing. [See
9 Dkt. No. 25.]
10 A. Petitioner’s Objections
11 In his Objections, Petitioner attempts to assert two new claims. [See
12 Dkt. No. 24 at 15-17.] A petitioner’s objections are not the proper place to
13 raise claims for the first time, and the Court may, in its discretion, decline to
14 consider any such claims. See Delgadillo v. Woodford, 527 F.3d 919, 930 n.4
15 (9th Cir. 2008) (“Arguments raised for the first time in [a habeas] petitioner's
reply brief are deemed waived.”); United States v. Howell, 231 F.3d 615, 621-
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presented for the first time in objections); Cacoperdo v. Demosthenes, 37 F.3d
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504, 507 (9th Cir. 1994). In deciding whether to consider the newly presented
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claims, the district court must actually exercise its discretion rather than
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summarily deny them. See Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002)
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(citing Howell, 231 F.3d at 621).
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Here, the Court declines to exercise its discretion to address the new
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claims that Petitioner attempts to assert in his Objections. The magistrate
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judge already allowed Petitioner to amend his original Petition to add three
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grounds for relief. [See Dkt. Nos. 11, 12, 19.] Additionally, based on the
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sparse allegations in support of his new claims – namely, a double jeopardy
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claim and a cumulative error claim (see Dkt. No. 24 at 15-17) – Petitioner was
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Case 2:20-cv-11167-JVS-PD Document 26 Filed 01/31/22 Page 3 of 4 Page ID #:360
1 undoubtedly aware of all the facts necessary to assert them when he filed his
2 original Petition; nevertheless, he failed to do so then or when he filed his
3 First Amended Petition. Accordingly, there is no reason to allow him to do so
4 now. Putting that aside, even if the Court were to consider them, both of his
5 proposed claims would be barred by Tollett v. Henderson, 411 U.S. 258, 267
6 (1973), for the reasons stated in the Report. [See Dkt. No. 23 at 5-7]; Rishor
7 v. Ferguson, 822 F.3d 482, 499 (9th Cir. 2016) (explaining that Tollett bars
8 any double jeopardy claim where petitioner pleaded guilty unless petitioner
9 alleges and proves that plea was not knowing and voluntary). Thus, having
10 conducted a de novo review of those portions of the Report to which Petitioner
11 has objected, the Court concludes that there is no reason to allow Petitioner to
12 use his Objections to assert his new claims.
13 B. Petitioner’s Request for an Evidentiary Hearing
14 Although habeas “is an important safeguard” designed “to correct real
15 and obvious wrongs,” it does not authorize habeas petitioners to engage in
“fishing expedition[s]” in search of facts to either support existing claims or
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identify new ones. Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999).
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Accordingly, an evidentiary hearing on a habeas petition is unwarranted
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unless (1) the petition contains “allegations [that], if established, would entitle
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the petitioner to relief” and (2) “the state court trier of fact has not reliably
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found the relevant facts.” Id. at 1068. Here, an evidentiary hearing is
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unwarranted because as explained in the Report, Petitioner’s claims are
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either barred by Tollett or not cognizable on federal habeas review. The facts
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underlying those claims – and the reasons that they fail – are not in dispute,
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and Petitioner has alleged no facts that would entitle him to relief. His
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request for an evidentiary hearing therefore must be denied.
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Case, 2:20-cv-11167-JVS-PD Document 26 Filed 01/31/22 Page4of4 Page ID#:361
I C. Order and Findings
1. The Court accepts the Magistrate Judge’s Report and
3 Recommendation and adopts it as its own findings and conclusions.
4 2. Petitioner’s request for an evidentiary hearing 1s denied.
° 3. For the reasons stated in the Report and Recommendation, the
6 Court finds that Petitioner has not made a substantial showing of the denial
of a constitutional right and, therefore, a certificate of appealability is denied.
8 See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537
9 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
10 4, The First Amended Petition is dismissed with prejudice.
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3 DATED: January 31, 2022 CO) f
14 Uy, Ie
15 JAMES V. SELNA
6 UNITED STATES DISTRICT JUDGE
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