1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEJANDRO ALVE, Case No.: 21cv349-CAB-DEB

12 Petitioner,

ORDER ADOPTING REPORT AND

13 v. RECOMMENDATION [Doc. No. 18]

AND GRANTING RESPONDENT’S

14 GAVIN NEWSOM, et al, MOTION TO DISMISS [Doc. No. 15] 15 Respondent. 16 17 Alejandro Alve (“Petitioner”), is a state prisoner proceeding pro se with a Petition 18 for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. 19 [Doc. No. 1.] This matter was referred to United States Magistrate Judge Daniel E. 20 Butcher pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Butcher issued a Report 21 and Recommendation (“Report”) recommending the Court grant Respondent’s motion to 22 dismiss. [Doc. No. 18.] Petitioner filed objections to the Report. [Doc. No. 19.] 23 Following de novo review of Petitioner’s claims, the Court finds the Report to be 24 thorough, complete, and an accurate analysis of the legal issues presented in the petition. 25 For the reasons explained below, the Court: (1) adopts the Report in full; (2) rejects 26 Petitioner’s objections; (3) grants Respondent’s motion to dismiss; and (4) denies a 27 certificate of appealability. 28 1 BACKGROUND 2 I. State Procedural Background 3 The Report contains a complete and accurate summary of the state court 4 proceedings, and the Court fully adopts the Report’s statement of state procedural 5 background. 6 II. Federal Procedural Background 7 On February 19, 2021, Petitioner filed this petition in the Central District of 8 California. [Doc. No. 1.] On February 26, 2021, the Petition was transferred to this 9 Court. [Doc. No. 5.] On April 27, 2021, Respondent filed a motion to dismiss. [Doc. 10 No. 15.] On October 26, 2021, Magistrate Judge Butcher issued a Report recommending 11 that the motion to dismiss be granted. [Doc. No. 18.] On November 12, 2021, Petitioner 12 filed an Objection to the Report. [Doc. No. 19.] Because Petitioner has objected to the 13 Report in its entirety, the Court reviews the Report de novo. 28 U.S.C. § 636(b)(1)(C); 14 Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004). 15 DISCUSSION 16 Respondent moves to dismiss the Petition on the grounds that it is untimely and 17 successive. [Doc. No. 15-1 at 2.] 18 A. Timeliness. 19 Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a 20 “1-year period of limitation shall apply to an application for a writ of habeas corpus by a 21 person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). 22 Here, for the reasons given by the Magistrate Judge, Alve’s Petition is untimely, and no 23 State impediment or extraordinary circumstances prevented Alve from filing a federal 24 habeas petition. [Doc. No. 18 at 3-5.] In his objections, Petitioner claims he was 25 prevented from appealing his case because, in his retrial on sanity in 1979, the district 26 attorney suggested Petitioner submit to various mental capacity tests but did not provide 27 the test results to the jury. [Doc. No. 19 at 2-3.] However, as noted by the magistrate 28 judge, Alve does not establish how this prevented him from filing a federal petition. 1 [Doc. No. 18 at 4 (citations omitted).] Therefore, the Court adopts the Report and grants 2 the motion to dismiss on the grounds that the Petition is untimely. 3 B. Successive. 4 With certain exceptions, “[a] claim presented in a second or successive habeas 5 corpus application under section 2254 that was not presented in a prior application shall 6 be dismissed.” 28 U.S.C. § 2244(b)(2). “Generally, a new petition is ‘second or 7 successive’ if it raises claims that were or could have been adjudicated on their merits in 8 an earlier petition.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (quoting Cooper 9 v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001). Here, Alve filed a Federal Petition in 10 the Central District in 1999 challenging his state court conviction. The Central District 11 denied the 1999 Petition as untimely. As noted by the Magistrate Judge, the current 12 Petition challenges the same conviction as the 1999 Petition, and the issue raised in this 13 Petition could have been raised in the 1999 Petition.1 As a result, this Petition is 14 successive. Given that Alve has not obtained permission from the Ninth Circuit to bring 15 this Petition, the court lacks jurisdiction. Accordingly, the Court adopts the Report and 16 grants the motion to dismiss for lack of jurisdiction. 17 CERTIFICATE OF APPEALABILITY 18 A petitioner complaining of detention arising from state court proceedings must 19 obtain a certificate of appealability to file an appeal of the final order in a federal habeas 20 proceeding. 28 U.S.C. § 2253(c)(1)(A) (2007). The district court may issue a certificate 21 of appealability if the petitioner “has made a substantial showing of the denial of a 22 constitutional right.” Id. § 2253(c)(2). To make a “substantial showing,” the petitioner 23 must “demonstrat[e] that ‘reasonable jurists would find the district court's assessment of 24

25 26 1 In his Objections, Petitioner claims that in the 1999 Petition he was not challenging his conviction but only the conditions of confinement. [Doc. No. 19 at 4.] However, in the 1999 Petition, Petitioner did 27 make constitutional claims about his conviction [ “. . . contending that he has been punished twice in violation of the constitution . . .”] in addition to other claims about his constitutional rights as a 28 1 || the constitutional claims debatable[.]’ ” Beaty v. Stewart, 303 F.3d 975, 984 (9th 2 || Cir.2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner has not 3 made a “substantial showing” as to any of the claims raised by his petition, and thus the 4 ||Court sua sponte denies a certificate of appealability. 5 CONCLUSION 6 For the reasons set forth above, the Court hereby: (1) ADOPTS the Report in full; 7 ||(2) rejects Petitioner's objections; (3) GRANTS the motion to dismiss the Petition; and 8 ||(4) denies a certificate of appealability. 9 IT IS SO ORDERED. 10 ||Dated: December 3, 2021 € 11 Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28