Petition for Writ of Certiorari — David B. Portee, Petitioner v. Craig Koenig, Warden

Supreme Court briefMay 12, 2021

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UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

MAR 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

DAVID B. PORTEE,

Petitioner-Appellant,

CRAIG KOENIG, Acting Warden,

No.

20-15104

D.C. No. 3:19-cv-02948-JD

Northern District of California,

San Francisco

ORDER

Respondent-Appellee.

Before:

CHRISTEN and WATFORD, Circuit Judges.

The request for a certificate of appealability is denied because appellant has

not shown that “jurists of reason would find it debatable whether the petition states

a valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C.

§ 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012).

Any pending motions are denied as moot.

DENIED.

APPENDIX B

Case 3:19-cv-02948-JD Document 10 Filed 01/06/20 Page 1 of 4

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DAVID B. PORTEE,

Petitioner,

KOENIG,

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Case No. 19-cv-02948-JD

ORDER OF DISMISSAL

Respondent.

Petitioner, a California prisoner, proceeds with a pro se petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. The original petition was dismissed with leave to amend and

petitioner has filed an amended petition.

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DISCUSSION

STANDARD OF REVIEW

The Court may consider a petition for 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. § 2254(a); Rose v.

Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of

habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court

must “specify all the grounds for relief available to the petitioner... [and] state the facts supporting

each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’

pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility

Case 3:19-cv-02948-JD Document 10 Filed 01/06/20 Page 2 of 4

of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubutv. Maim, 431 F.2d

688, 689 (1st Cir. 1970)).

LEGAL CLAIM

Petitioner was convicted in 1982 and sentenced to life in prison. Am. Pet. at 1. In the

original habeas petition, the main argument was that the judges involved with various events in

petitioner’s case in 1981 -- his arrest warrant, a search warrant, and a preliminary hearing — did

not have proper oaths of office in place. This was, on its face, a highly doubtful claim, but the

Court determined in any event that it appeared to be successive or untimely. The petition was

dismissed with leave to amend to address that issue, which is now taken up here.

“A claim presented in a second or successive habeas corpus application under section 2254

that was not presented in a prior application shall be dismissed . ..” 28 U.S.C. § 2244(b)(2). This

is the case unless,

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(A) the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral review by

the Supreme Court, that was previously unavailable; or

(B) (i) the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in

light Of the evidence as a whole, would be sufficient to establish by

clear and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the

underlying offense.

28 U.S.C. § 2244(b)(2).

“Before a second or successive application permitted by this section is filed in the district

court, the applicant shall move 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 Antiterrorism and Effective Death Penalty Act of 1996, which became law on April

24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus

filed by state prisoners. Petitions filed by prisoners challenging noncapital state convictions or

sentences must be filed within one year of the latest of the date on which: (A) the judgment

became final after the conclusion of direct review or the time passed for seeking direct review; (B)

an impediment to filing an application created by unconstitutional state action was removed, if

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Case 3:19-cv-02948-JD Document 10 Filed 01/06/20 Page 3 of 4

such action prevented petitioner from filing; (C) the constitutional right asserted was recognized

by the Supreme Court, if the right was newly recognized! by the Supreme Court and made

retroactive to cases on collateral review; or (D) the factual predicate of the claim could have been

discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). A prisoner with a state

conviction finalized before April 24, 1996, had until April 24, 1997, to file a federal habeas

petition on time. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

Petitioner says that the petition is timely and not successive because he recently discovered

that the judges involved in his case in 1981 did not have oaths of office filed with the Secretary of

State. The point is not well taken. To start, petitioner has not proffered any evidence showing the

lack of a proper oath. At most, he says he personally hasn’t seen what he considers to be

appropriate documentation of the oaths. That is not evidence. Moreover, the facts relevant to the

petition date back to 1981 or before. It is not at clear how any of this is, or could ever be deemed,

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That is enough to dismiss the case with prejudice. The Court also notes that, even if the

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petition were proper, it fails to state a viable claim for relief. Petitioner’s argument that there was

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an error under state law does not entitle him to relief because the state courts already denied this

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claim. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot

reexamine a state court’s interpretation and application of state law).

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CONCLUSION

The case is DISMISSED and the Clerk is requested to close the file. The Court declines

to issue a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

IT IS SO ORDERED.

Dated: January 6, 2020

JAMES DjpfATO

United Stmes District Judge

APPENDIX C

SUPERIOR COURT, STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

Department 20, Honorable Carrie Zepeda

for

Department 19, Honorable Peter H. Kirwan, Presiding

Malanie Bueno, Courtroom Clerk

Court Reporter: SEE NOTE BELOW

191 North First Street, San Jose, CA 95113

Telephone: 408.882.2320

To contest the ruling, call (408) 808-6856 before 4:00 P.M.

LAW AND MOTION TENTATIVE RULINGS

DATE: April 17, 2018

TIME: 9 A.M.

PLEASE NOTE: EFFECTIVE 7-24-17, THE COURT WILL NO

LONGER BE PROVIDING COURT REPORTERS. IF YOU WANT A

COURT REPORTER AT YOUR HEARING, ALL PARTIES MUST

JOINTLY AGREE AND A ST1PULA TION AND APPOINTMENT MUST

BE COMPLETED. SEE FORM CIV-5063

THE COURT WILL PREPARE THE ORDER UNLESS STATED

OTHERWISE BELOW

TROUBLESHOOTING TENTATIVE RULINGS

If you see last week's tentative rulings, you have checked prior to the posting of the

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LINE#

CASE #

CASE TITLE

RULING

LINE I 16cv295764

TX Trading vs. Jack Off Calendar

Xu, et al

•'1

LINE 2 16cv295764

TX Trading vs. Jack Off Calendar

Xu, et al

LINE 3 16cv295764

TX Trading vs. Jack Off Calendar

Xu, et al

Click.on Line 4 for ruling.

LINE 4 16cv300503

David Portee vs.

Fred Lucero, et al

Click on Line 5 for ruling.

LINE 5 16cv300503

David Portee vs.

Fred Lucero, et al

LINE 6 17cv317308

Pacific Construction Defendants Nunez General contractors and

Enrique Nunez Covarrubias’ Demurrer to the

& Design, Inc vs.

Complaint

and Motion for Judicial Notice are

Nunez General

unopposed

and GRANTED. Plaintiff shall

Contractors, Inc., et

have

days

leave to amend from the date of

service of the order.

-ooOoo -

Calendar Line 4

Case No. 16 CV 3000503

David Portee v. Fred Lucero, et al

The Honorable Defendants Fred S. Lucero, John A. Flaherty and Leonard P. Edwards

filed a demurrer to Plaintiffs complaint. Plaintiff David Portee did not file an opposition to

the dem'urrer, but instead, filed a pleading entitled, “Plaintiff, David Portee’s Notice of

Motions: Request for Extension of time to File Objections to Defendants' Notice of Demurrer

by Defendants Judge Fred S. Lucero (Ret.),-Judge Leonard P.. Edwards (Ret), and Judge John

A. Flaherty (ret.) Motion for Stay of Proceedings for a Determination Whether the “Judicial

Defendants’ were in Fact “Judicial Actors”, without an Oath of Office or Bond, at.the Time of

Proceedings and Acts Taken in a Judicial Capacity.” As set forth in the ruling on Line 5 •

herein, Plaintiffs Notice of Motion did not contain any memorandum of points and authorities

and didjnot address the issues or law related to a request for extension of time or to stay the

proceedings. Furthermore, the Notice of Motion did not address the arguments raised in the

demurrer, such as the failure to comply with the Government Claims Act or statute of

limitations. Accordingly, the court determines that Defendants’ Demurrer is unopposed and

is GRANTED without leave to amend.

►

\PPSNDIX P

Court of Appeal, Sixth Appellate District

Susan S. Miller, Clerk/Kxecutive Officer

Electronically FILED on 3/7/2019 by j. Segura. Deputy Clerk

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNL

SIXTH APPELLATE DISTRICT

{

DAVID B. PORTEE,

Petitioner,

THE SUPERIOR COURT OF SANTA CLARA COUNTY,

Respondent;

FRED LUCERO,

Real Party in Interest.

H046415

Santa Clara County Super. Ct. No. CV300503

BY THE COURT:

The petition for writ of mandate or other appropriate relief and the request for stay

are denied.

(Elia, Acting P.J., Bamattre-Manoukian, J. and Mihara, J. participated in this

decision.)

Date:

03/08/2019

Acting P.J.

«•

CONCLUSION

The petition for writ of certiorari should he granted.

Respectfully submitted,

ill

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