Alonzo McKinney v. Rocha

CIVIL MINUTES – GENERAL

Case No. CV 24-02295-JGB (KS) Date: March 27, 2024

Title Alonzo McKinney v. Rocha

Present: The Honorable: Karen L. Stevenson, United States Magistrate Judge

Gay Roberson N/A

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL

BACKGROUND

On March 20, 2024, Petitioner, a California state prisoner, filed a Petition for Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). (Dkt. No. 1.) The Petition appears to

state that Petitioner is challenging an “error of P.L.R.A. fees.” (Id. at 2.)1

Petitioner has filed several prior habeas petitions in this district, including the following:

1) Alonzo McKinney v. Newsom, 2:23-cv-01529-AB-AGR (February 17, 2023)

(dismissed for failure to state a cognizable claim);

2) Alonzo McKinney v. Unknown, 2:22-cv-02722-JGB-KS (April 22, 2022)

(dismissed for failure to state a cognizable claim);

3) Alonzo McKinney v. G. Newsom, 2:20-cv-10736-JGB-KS (Jan. 15, 2021)

(dismissed as second or successive);

4) Alonzo McKinney v. G. Newson, 2:19-cv-04059-JGB-KS (Jun. 14, 2019)

(dismissed as second or successive);

5) Alonzo McKinney v. Scott Kernan, 2:18-cv-04088-JAK-FFM (Jul. 2, 2018)

(dismissed as second or successive);

6) Alonzo McKinney v. G. Smith, 2:17-cv-02578-JAK-FFM (Dec. 1, 2017)

(dismissed for failure to state a cognizable claim);

1 For ease of reference, the Court cites to the page numbers assigned by the Court’s electronic case filing.

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Case No. CV 24-02295-JGB (KS) Date: March 27, 2024

Title Alonzo McKinney v. Rocha

7) Alonzo McKinney v. Christian Pfeiffer, 2:15-cv-05268-JAK-MAR (Mar. 21,

2017) (dismissed for failure to state a cognizable claim);

8) Alonzo McKinney v. Acebedo, 2:14-cv-01102-GAF-DTB (Mar. 24, 2014)

(dismissed for lack of jurisdiction);

9) Alonzo McKinney v. Lisa Lichenstein, 2:13-cv-04403-GAF-DTB (Jul. 6, 2013)

(dismissed for lack of jurisdiction);

10) Alonzo McKinney v. People of the State of California, 2:10-cv-01932-GAF-

FMO (Apr. 8, 2010) (dismissed for lack of jurisdiction);

11) Alonso McKinney v. A K Scribner, 2:05-cv-00659-SJO-FMO (Feb. 7, 2005)

(dismissed for lack of jurisdiction);

12) Alonzo McKinney v. United States of America, 2:04-cv-09221-RMT-FMO

(Dec. 16, 2004) (dismissed for lack of jurisdiction);

13) Alonzo McKinney v. D.D. Ortiz et al, 2:04-cv-03614-GAF-FMO (Jun. 9, 2004)

(dismissed for lack of jurisdiction);

14) Alonzo McKinney v. Ernie Roe et al, 2:01-cv-01008-RMT-EE (Jul. 5, 2001)

(dismissed as second or successive);

15) Alonzo McKinney v. Lancaster State, 2:00-cv-12831-RMT-EE (Apr. 20, 2001)

(dismissed for lack of jurisdiction);

16) Alonso McKinney v. Lennox, et al, 2:00-cv-00492-JGB-KS (Nov. 8, 2000)

(dismissed for lack of jurisdiction); and

17) Alonzo McKinney v. High Desert State, et al, 2:99-cv-03331-JGB-KS (Mar. 22,

2001) (denied on the merits with prejudice).

Notably, Petitioner’s prior habeas petitions include a March 30, 1999 petition attacking

Petitioner’s 1997 conviction and the resulting sentence of 25 years to life (“March 1999 Petition”)

that was denied with prejudice on the merits. (See Alonzo McKinney v. High Desert State, et al,

No. 2:99-cv-03331-JGB-KS, Dkt. Nos. 1, 36-38.)

For the following reasons, the Court orders Petitioner to show cause, no later than April

30, 2024, why the Petition should not be dismissed pursuant to Rule 4 of the Rules Governing

Section 2254 Cases in the United States District Courts.

CIVIL MINUTES – GENERAL

Case No. CV 24-02295-JGB (KS) Date: March 27, 2024

Title Alonzo McKinney v. Rocha

LEGAL STANDARD

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28

U.S.C. foll. § 2254 (“Habeas Rules”), requires a district court to dismiss a petition without ordering

a responsive pleading where “it plainly appears from the petition and any attached exhibits that

the petitioner is not entitled to relief.” Thus, Rule 4 reflects Congress’s intent for the district courts

to take an active role in summarily disposing of facially defective habeas petitions. Boyd v.

Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). However, a district court’s use of this summary

dismissal power is not without limits. Id. at 1128. A habeas court must give a petitioner notice of

the defect and the consequences for failing to correct it as well as an opportunity to respond to the

argument for dismissal. Id.

DISCUSSION

I. The Petition Fails to Satisfy the Demanding Pleading Standard of Habeas Rule 2

A. Legal Standard

Rule 8 of the Federal Rules of Civil Procedure requires a complaint in an ordinary civil

case to provide fair “notice of the claim such that the opposing party may defend himself or herself

effectively.” Starr v. Baca, 652 F.3d 1202, 1212 (9th Cir. 2011). Habeas Rule 2(c) imposes a

“more demanding” pleading standard. Mayle v. Felix, 545 U.S. 644, 655 (2005). Specifically,

Habeas Rule 2 requires, inter alia, that the Petition specify the grounds for relief available to

Petitioner, state the facts supporting each ground, state the relief requested, be legible, and be

signed under penalty of perjury by Petitioner. See id. The Advisory Committee’s Notes state that

“it is the relationship of the facts to the claim asserted that is important” under Rule 2, and the

Petition must “state facts that point to a real possibility of constitutional error.” Id.; Advisory

Committee’s Note on subd. (c) of Habeas Corpus Rule 2; Advisory Committee’s Note on Habeas

Corpus Rule 4.

Although the Court must construe pro se pleadings liberally, Erickson v. Pardus, 551 U.S.

89, 94 (2007), the Court may not supply essential elements of a claim that were not initially pled,

Byrd v. Maricopa County Sheriff’s Dep’t, 629 F.3d 1135, 1140 (9th Cir. 2011). Further,

allegations that are vague, conclusory, “palpably incredible,” “patently frivolous or false,” or

unsupported by a statement of specific facts, are insufficient to warrant relief and are subject to

CIVIL MINUTES – GENERAL

Case No. CV 24-02295-JGB (KS) Date: March 27, 2024

Title Alonzo McKinney v. Rocha

summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge

v. Allison, 431 U.S. 63, 75-76 (1977)).

B. Analysis

The Petition violates Rule 2. Petitioner fails to provide crucial information in the Petition,

and as a result, it is impossible for the Court to discern the nature of Petitioner’s claims and whether

it has jurisdiction to the consider the Petition. Petitioner fails to specify his grounds for relief and

to allege facts that would support each ground. At best, the Court can discern that the Petition

raises a sole ground for relief—challenging an “error of P.L.R.A. fees.” 2 (Id. at 2.) However,

Petitioner does not provide any facts to support this ground. Furthermore, the Petition fails to

explain how the fact or duration of Petitioner’s custody violates the U.S. Constitution. See Estelle

v. McGuire, 502 U.S. 62, 67-68 (1991) (noting that “a federal court is limited to deciding whether

a conviction violated the Constitution, laws, or treaties of the United States”). Even construed

liberally, Petitioner’s allegations are too vague to point to “a real possibility of constitutional

error.” See Advisory Committee’s Note on Habeas Corpus Rule 4; see also Hendricks, 908 F.2d

at 491. Accordingly, the Petition is subject to dismissal pursuant to Habeas Rules 2 and 4.

II. The Petition Appears to Be Second or Successive

A. Legal Standard

State habeas petitioners generally may file only one federal habeas petition challenging a

particular state conviction and/or sentence. See, e.g., 28 U.S.C. §§ 2244(b)(1) (stating that courts

must dismiss a claim presented in a second or successive petition when that claim was presented

in a prior petition) and 2244(b)(2) (stating that with exceptions, courts must dismiss a claim

presented in a second or successive petition when that claim was not presented in a prior petition).

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

adjudicated on the merits” in an earlier § 2254 petition. McNabb v. Yates, 576 F.3d 1028, 1029

(9th Cir. 2009); see Gage v. Chappell, 793 F.3d 1159, 1165 (9th Cir. 2015) (noting that claims for

2 It is unclear if Petitioner is attempting to allege that a court clerk erred in one of his prior cases. (See Dkt. No. 1 at

3.) Petitioner’s limited allegations do not sound in federal habeas corpus because they would not necessarily lead to

Petitioner’s immediate or speedier release if they were true. See Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016).

Moreover, court clerks are “entitled to immunity from damages for civil rights violations for tasks that are integral to

the judicial process.” Mullis v. U.S. Bankr. Ct. for Dist. of Nevada, 828 F.2d 1385, 1390 (9th Cir. 1987).

CIVIL MINUTES – GENERAL

Case No. CV 24-02295-JGB (KS) Date: March 27, 2024

Title Alonzo McKinney v. Rocha

which the factual predicate existed at the time of the first habeas petition qualify as second or

successive).

Even when § 2244(b) provides grounds for pursuing a second or successive § 2254 habeas

petition, state habeas petitioners seeking relief in this district court must first obtain authorization

from the Ninth Circuit before filing any such second or successive petition. 28 U.S.C. §

2244(b)(3). The Ninth Circuit “may authorize the filing of the second or successive [petition] only

if it presents a claim not previously raised that satisfies one of the two grounds articulated in §

2244(b)(2).” Burton v. Stewart, 549 U.S. 147, 153 (2007).

B. Analysis

The Court denied Petitioner’s March 1999 Petition with prejudice on the merits, see Alonzo

McKinney v. High Desert State, et al, 2:99-cv-03331-JGB-KS, Dkt. Nos. 37-38, and Petitioner has

not alleged that he received leave from the Ninth Circuit to bring a second or successive § 2254

petition. Accordingly, the Petition appears to be an unauthorized second or successive § 2254

petition and must be dismissed because the Court lacks jurisdiction to consider it. 28 U.S.C. §

2244(b); see also Burton, 549 U.S. at 157 (finding that the district court lacks jurisdiction to

consider the merits of a second or successive petition absent prior authorization from the circuit

court).

ORDER TO SHOW CAUSE

Based on the foregoing, Petitioner is ORDERED TO SHOW CAUSE no later than

April 30, 2024 why the Petition should not be dismissed for violating Habeas Rule 2 and for

constituting an unauthorized second or successive petition. To discharge this Order and

proceed with this action, Petitioner shall file, no later than the April 30, 2024 deadline, a First

Amended Petition that does all of the following:

(1) Demonstrates that the Ninth Circuit has authorized Petitioner to file this second or

successive petition;

(2) Clearly identifies the conviction or other judicial action being challenged, including

the date of the conviction (or other judicial action) and the court and year in which it

occurred; and

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL

Case No. _ CV 24-02295-JGB (KS) Date: March 27, 2024

Title Alonzo McKinney v. Rocha

(3) Explains how the conviction or other judicial action being attacked violates the

Constitution or the laws of the United States. Petitioner is reminded that, without

more, it is not sufficient to simply cite to a constitutional amendment. Instead, “[i]t is

the relationship of the facts to the claim asserted that is important” under Rule 2, and

the Petition must “state facts that point to a real possibility of constitutional error.”

See Advisory Committee’s Note on subd. (c) of Habeas Corpus Rule 2; Advisory

Committee’s Note on Habeas Corpus Rule 4. Petitioner is also reminded that federal

habeas corpus relief is not available to remedy errors of state law, and the Court is

limited to deciding whether Petitioner's sentence or conviction violated the

Constitution, laws, or treaties of the United States. See Estelle, 502 U.S. at 67-68.

Further, in filing a First Amended Petition, Petitioner is strongly encouraged to use the

Central District’s form habeas petition. The Clerk is directed to send Petitioner a copy of the

Central District’s form habeas petition.

Finally, Petitioner is expressly warned that his failure to timely comply with this

Order and file a First Amended Petition that shows cause for proceeding with this action will

result in the Court recommending dismissal pursuant to Rule 4 of the Habeas Rules, Local

Rule 41-1, and Rule 41 of the Federal Rules of Civil Procedure.

If Petitioner no longer wishes to pursue this action, he may voluntarily dismiss it by filing

a signed document entitled “Notice of Voluntary Dismissal” in accordance with Federal Rule of

Civil Procedure 41(a)(1).

Initials of Preparer gr

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