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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 RONALD BUZZARD, JR., CASE NO. C22-1271JLR 11 Petitioner, ORDER v. 12 DANIEL WHITE, 13 Respondent. 14
15 I. INTRODUCTION 16 This matter comes before the court on the report and recommendation of 17 Magistrate Judge Brian A. Tsuchida (R&R (Dkt. # 10)) and pro se Petitioner Ronald 18 Buzzard, Jr.’s objections thereto (Obj. (Dkt. # 11)). Magistrate Judge Tsuchida 19 recommends dismissing Mr. Buzzard’s 28 U.S.C. § 2254 habeas petition. (R&R at 1, 3; 20 see also Pet. (Dkt. # 8).) Having carefully reviewed the foregoing, along with all other 21 relevant documents, and the governing law, the court ADOPTS in part the report and 22 // 1 recommendation, OVERRULES Mr. Buzzard’s objections, and DISMISSES Mr. 2 Buzzard’s § 2254 habeas petition without prejudice.
3 II. BACKGROUND 4 In the instant habeas petition, Mr. Buzzard challenges his 2002 Washington State 5 first degree rape of a child conviction and sentence of 123 months to life. (See generally 6 Pet.) Mr. Buzzard argues that the sentencing judge violated his constitutional rights by 7 “fraudulently” “changing” his judgment and sentence from a determinate sentence of 123 8 months to an indeterminate sentence of 123 months to life.1 (Pet. Exs. (Dkt. # 8-1) at 3,
9 6-8.2) 10 Magistrate Judge Tsuchida recommends that the court deny Mr. Buzzard’s § 2254 11 habeas petition with prejudice and deny the issuance of a certificate of appealability on 12 the grounds that the habeas petition is (1) untimely and (2) a second or successive habeas 13 petition. (See R&R at 1-3.) As to his conclusion that the instant petition is untimely,
14 Magistrate Judge Tsuchida states that the instant habeas petition is not based upon newly 15 discovered evidence that would exclude Mr. Buzzard’s claims from the applicable 16 one-year statute of limitations because the “evidence upon which the present petition 17 relies was . . . known and available to [Mr. Buzzard] over seven years ago,” as Mr. 18
19 1 The court ADOPTS Magistrate Judge Tsuchida’s summary of the background of the instant petition and Mr. Buzzard’s 2014 habeas petition. (See R&R at 2-3.) Additionally, the 20 report and recommendation issued in Mr. Buzzard’s 2014 habeas case (see R&R, Buzzard v. Glebe, C14-1663MJP (W.D. Wash. July 2, 2015), Dkt. # 36) summarizes the relevant facts and the procedural history of Mr. Buzzard’s criminal case, and the court does not repeat them here. 21
2 The court uses the CM/ECF page numbers when citing to the exhibits in docket entry 22 8-1. 1 Buzzard attached copies of the plea and sentencing transcripts at issue to his 2014 habeas 2 petition. (Id. at 3.) In concluding that that the petition must be dismissed as a second or
3 successive petition, Magistrate Judge Tsuchida notes that Mr. Buzzard filed a § 2254 4 habeas petition challenging the same conviction in this court in 2014; he raised a very 5 similar habeas claim in that 2014 petition—i.e., that he should receive a determinate 6 123-month sentence and the sentencing judge improperly ordered he receive an 7 indeterminate 123 to life; the previous claim “was fully adjudicated and dismissed as 8 untimely in 2015 by Judge Pechman”; and such a claim “may not be reraised simply by
9 filing a second or successive petition.” (Id. (citing 28 U.S.C. § 2244(b)(1)(2)).) 10 Mr. Buzzard timely objected to the report and recommendation on the ground that 11 the instant petition should not be dismissed as a second or successive petition because his 12 2014 habeas petition was not dismissed on the merits. (See Obj. at 1-3.) 13 III. ANALYSIS
14 A district court has jurisdiction to review a Magistrate Judge’s report and 15 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “A judge of the court 16 may accept, reject, or modify, in whole or in part, the findings or recommendations made 17 by the magistrate judge.” 28 U.S.C. § 636(b)(1). “The statute makes it clear that the 18 district judge must review the magistrate judge’s findings and recommendations de novo
19 if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 20 1121 (9th Cir. 2003) (en banc). Because Mr. Buzzard is proceeding pro se, this court 21 must interpret his petition and objections liberally. See Bernhardt v. Los Angeles Cnty., 22 339 F.3d 920, 925 (9th Cir. 2003). 1 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) “greatly restricts 2 the power of federal courts to award relief to state prisoners who file second or
3 successive habeas corpus” petitions. Tyler v. Cain, 533 U.S. 656, 661-62 (2001). Under 4 the Act, a second or successive § 2254 petition must be dismissed unless it meets one of 5 the exceptions outlined in 28 U.S.C. § 2244(b)(2). See, e.g., 28 U.S.C. § 2244(b)(1) 6 (stating that courts must dismiss claim presented in second or successive petition when 7 that claim was presented in a prior petition); id. § 2244(b)(2) (stating that courts must 8 dismiss a claim presented in a second or successive petition when that claim was not
9 presented in a prior petition unless a petitioner meets one of two exceptions). “A habeas 10 petition is second or successive only if it raises claims that were or could have been 11 adjudicated on the merits” in an earlier petition. McNabb v. Yates, 576 F.3d 1028, 1029 12 (9th Cir. 2009); see also Ware v. Carey, 204 F. App’x 657, 658 (9th Cir. 2006) (“A 13 ground is ‘successive if the basic thrust or gravamen of the legal claim is the same,
14 regardless of whether the basic claim is supported by new and different legal 15 arguments.’” (quoting United States v. Allen, 157 F.3d 661, 664 (9th Cir.1998))). “A 16 disposition is ‘on the merits’ if the district court either considers and rejects the claims or 17 determines that the underlying claim will not be considered by a federal court.” McNabb, 18 576 F.3d at 1029 (citing Howard v. Lewis, 905 F.3d 1318, 1322 (9th Cir. 1990)).
19 Mr. Buzzard argues that the instant petition is not a second or successive petition 20 because his 2014 habeas petition was “dismissed on a procedural issue”—i.e., his failure 21 to comply with the applicable one-year statute of limitations—rather than on the merits. 22 (See Obj. at 1-3.) The Ninth Circuit, however, has held that the dismissal of a first 1 habeas petition because it is untimely “presents a ‘permanent and incurable’ bar to 2 federal review of the underlying claims” and “constitutes a disposition on the merits.”
3 McNabb, 576 F.3d at 1030. Mr. Buzzard’s 2014 § 2254 petition sought habeas relief 4 based on the same 2002 conviction challenged in this action, and the 2014 petition raised 5 essentially the same claim alleged in the instant petition.3 (See R&R at 2-3; compare Pet. 6 at 5, and Pet. Exs.
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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 RONALD BUZZARD, JR., CASE NO. C22-1271JLR 11 Petitioner, ORDER v. 12 DANIEL WHITE, 13 Respondent. 14
15 I. INTRODUCTION 16 This matter comes before the court on the report and recommendation of 17 Magistrate Judge Brian A. Tsuchida (R&R (Dkt. # 10)) and pro se Petitioner Ronald 18 Buzzard, Jr.’s objections thereto (Obj. (Dkt. # 11)). Magistrate Judge Tsuchida 19 recommends dismissing Mr. Buzzard’s 28 U.S.C. § 2254 habeas petition. (R&R at 1, 3; 20 see also Pet. (Dkt. # 8).) Having carefully reviewed the foregoing, along with all other 21 relevant documents, and the governing law, the court ADOPTS in part the report and 22 // 1 recommendation, OVERRULES Mr. Buzzard’s objections, and DISMISSES Mr. 2 Buzzard’s § 2254 habeas petition without prejudice.
3 II. BACKGROUND 4 In the instant habeas petition, Mr. Buzzard challenges his 2002 Washington State 5 first degree rape of a child conviction and sentence of 123 months to life. (See generally 6 Pet.) Mr. Buzzard argues that the sentencing judge violated his constitutional rights by 7 “fraudulently” “changing” his judgment and sentence from a determinate sentence of 123 8 months to an indeterminate sentence of 123 months to life.1 (Pet. Exs. (Dkt. # 8-1) at 3,
9 6-8.2) 10 Magistrate Judge Tsuchida recommends that the court deny Mr. Buzzard’s § 2254 11 habeas petition with prejudice and deny the issuance of a certificate of appealability on 12 the grounds that the habeas petition is (1) untimely and (2) a second or successive habeas 13 petition. (See R&R at 1-3.) As to his conclusion that the instant petition is untimely,
14 Magistrate Judge Tsuchida states that the instant habeas petition is not based upon newly 15 discovered evidence that would exclude Mr. Buzzard’s claims from the applicable 16 one-year statute of limitations because the “evidence upon which the present petition 17 relies was . . . known and available to [Mr. Buzzard] over seven years ago,” as Mr. 18
19 1 The court ADOPTS Magistrate Judge Tsuchida’s summary of the background of the instant petition and Mr. Buzzard’s 2014 habeas petition. (See R&R at 2-3.) Additionally, the 20 report and recommendation issued in Mr. Buzzard’s 2014 habeas case (see R&R, Buzzard v. Glebe, C14-1663MJP (W.D. Wash. July 2, 2015), Dkt. # 36) summarizes the relevant facts and the procedural history of Mr. Buzzard’s criminal case, and the court does not repeat them here. 21
2 The court uses the CM/ECF page numbers when citing to the exhibits in docket entry 22 8-1. 1 Buzzard attached copies of the plea and sentencing transcripts at issue to his 2014 habeas 2 petition. (Id. at 3.) In concluding that that the petition must be dismissed as a second or
3 successive petition, Magistrate Judge Tsuchida notes that Mr. Buzzard filed a § 2254 4 habeas petition challenging the same conviction in this court in 2014; he raised a very 5 similar habeas claim in that 2014 petition—i.e., that he should receive a determinate 6 123-month sentence and the sentencing judge improperly ordered he receive an 7 indeterminate 123 to life; the previous claim “was fully adjudicated and dismissed as 8 untimely in 2015 by Judge Pechman”; and such a claim “may not be reraised simply by
9 filing a second or successive petition.” (Id. (citing 28 U.S.C. § 2244(b)(1)(2)).) 10 Mr. Buzzard timely objected to the report and recommendation on the ground that 11 the instant petition should not be dismissed as a second or successive petition because his 12 2014 habeas petition was not dismissed on the merits. (See Obj. at 1-3.) 13 III. ANALYSIS
14 A district court has jurisdiction to review a Magistrate Judge’s report and 15 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “A judge of the court 16 may accept, reject, or modify, in whole or in part, the findings or recommendations made 17 by the magistrate judge.” 28 U.S.C. § 636(b)(1). “The statute makes it clear that the 18 district judge must review the magistrate judge’s findings and recommendations de novo
19 if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 20 1121 (9th Cir. 2003) (en banc). Because Mr. Buzzard is proceeding pro se, this court 21 must interpret his petition and objections liberally. See Bernhardt v. Los Angeles Cnty., 22 339 F.3d 920, 925 (9th Cir. 2003). 1 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) “greatly restricts 2 the power of federal courts to award relief to state prisoners who file second or
3 successive habeas corpus” petitions. Tyler v. Cain, 533 U.S. 656, 661-62 (2001). Under 4 the Act, a second or successive § 2254 petition must be dismissed unless it meets one of 5 the exceptions outlined in 28 U.S.C. § 2244(b)(2). See, e.g., 28 U.S.C. § 2244(b)(1) 6 (stating that courts must dismiss claim presented in second or successive petition when 7 that claim was presented in a prior petition); id. § 2244(b)(2) (stating that courts must 8 dismiss a claim presented in a second or successive petition when that claim was not
9 presented in a prior petition unless a petitioner meets one of two exceptions). “A habeas 10 petition is second or successive only if it raises claims that were or could have been 11 adjudicated on the merits” in an earlier petition. McNabb v. Yates, 576 F.3d 1028, 1029 12 (9th Cir. 2009); see also Ware v. Carey, 204 F. App’x 657, 658 (9th Cir. 2006) (“A 13 ground is ‘successive if the basic thrust or gravamen of the legal claim is the same,
14 regardless of whether the basic claim is supported by new and different legal 15 arguments.’” (quoting United States v. Allen, 157 F.3d 661, 664 (9th Cir.1998))). “A 16 disposition is ‘on the merits’ if the district court either considers and rejects the claims or 17 determines that the underlying claim will not be considered by a federal court.” McNabb, 18 576 F.3d at 1029 (citing Howard v. Lewis, 905 F.3d 1318, 1322 (9th Cir. 1990)).
19 Mr. Buzzard argues that the instant petition is not a second or successive petition 20 because his 2014 habeas petition was “dismissed on a procedural issue”—i.e., his failure 21 to comply with the applicable one-year statute of limitations—rather than on the merits. 22 (See Obj. at 1-3.) The Ninth Circuit, however, has held that the dismissal of a first 1 habeas petition because it is untimely “presents a ‘permanent and incurable’ bar to 2 federal review of the underlying claims” and “constitutes a disposition on the merits.”
3 McNabb, 576 F.3d at 1030. Mr. Buzzard’s 2014 § 2254 petition sought habeas relief 4 based on the same 2002 conviction challenged in this action, and the 2014 petition raised 5 essentially the same claim alleged in the instant petition.3 (See R&R at 2-3; compare Pet. 6 at 5, and Pet. Exs. at 1-13, with Pet. at 1-6, Buzzard, C14-1663MJP (W.D. Wash. Jan. 6, 7 2015), Dkt. # 10.) Judge Pechman’s dismissal of the 2014 petition on the ground that it 8 was untimely (Order, Buzzard, C14-1663MJP (W.D. Wash. Oct. 15, 2015), Dkt. # 40)
9 “constitutes a disposition on the merits” for purposes of 28 U.S.C. § 2244(b). 10 Accordingly, Mr. Buzzard’s objection is meritless, and Magistrate Judge Tsuchida 11 properly concluded that the instant petition is a second or successive petition. See 12 McNabb, 576 F.3d at 1030 (holding “that dismissal of a section 2254 habeas petition for 13 failure to comply with the statute of limitations renders subsequent petitions second or
14 successive for purposes of” § 2244(b)). 15 To bring this second or successive petition, Mr. Buzzard must first obtain 16 permission from the Ninth Circuit, as required by 28 U.S.C. § 2244(b)(3). See Cooper v. 17 Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (“When the AEDPA is in play, the district 18 court may not, in the absence of proper authorization from the court of appeals, consider
19 a second or successive habeas application.”). Permission to file this second or successive 20
21 3 Pursuant to Federal Rule of Evidence 201, the court takes judicial notice of the records and files from Mr. Buzzard’s prior action in this district and the electronic dockets for the United 22 States Court of Appeals for the Ninth Circuit available through the PACER system. 1 petition may be granted only if Mr. Buzzard makes a prima facie showing that: (1) the 2 claim relies on a new, and previously unavailable, rule of constitutional law, which the
3 Supreme Court has ordered be made retroactive to collateral proceedings; or (2) the 4 factual predicate of the claim could not have been discovered earlier through the exercise 5 of due diligence, and the facts alleged, if proven, would be sufficient to establish by clear 6 and convincing evidence that, but for the constitutional error claimed, no reasonable fact- 7 finder would have found Mr. Buzzard guilty. See 28 U.S.C. § 2244(b)(2)(A)(B); id. 8 § 2244(b)(3)(C); McNabb, 576 F.3d at 1030.4
9 Because Mr. Buzzard has not obtained permission from the Ninth Circuit to bring 10 a second or successive petition,5 the court lacks jurisdiction to consider the instant 11 petition. Burton v. Stewart, 549 U.S. 147, 157 (2007) (stating that the district court lacks 12 jurisdiction to consider the merits of a second or successive petition absent prior 13 authorization from the circuit court); see also 28 U.S.C. § 2244(b)(3)(A). Accordingly,
14 the court DISMISSES Mr. Buzzard’s unauthorized second or successive § 2254 petition 15 without prejudice.6 Mr. Buzzard may file a new habeas action that includes the same 16 17 4 Based on the nature of the claim alleged in the instant petition, which is essentially the 18 same as one of the claims found to be untimely in the 2014 petition, it is difficult to see how Mr. Buzzard will be able to satisfy § 2244(b)’s requirements. 19 5 The Ninth Circuit’s dockets show that Mr. Buzzard has not filed any § 2244(b) 20 application in the Ninth Circuit.
6 The court further finds that even assuming the instant petition is not second or 21 successive, it is untimely and barred by AEDPA’s one-year statute of limitations for the reasons stated in Magistrate Judge Tsuchida’s report and recommendation. See 28 U.S.C. § 2244(d); 22 (R&R at 3). 1 claim at issue in the instant petition if he first obtains permission from the Ninth Circuit 2 to file a successive petition. See 28 U.S.C. § 2244(b).7
3 The court further ADOPTS Magistrate Judge Tsuchida’s recommendation that the 4 court deny Mr. Buzzard a certificate of appealability. (See R&R at 3-4.) When a district 5 court enters a final order adverse to the applicant in a habeas proceeding, it must either 6 issue or deny a certificate of appealability, which is required to appeal a final order in a 7 habeas proceeding. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability is 8 appropriate only where the petitioner makes “a substantial showing of the denial of a
9 constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Under this 10 standard, the petitioner must demonstrate that reasonable jurists could debate whether the 11 petition should have been resolved in a different manner or that the issues presented were 12 adequate to deserve encouragement to proceed further. 28 U.S.C. § 2253; Slack v. 13 McDaniel, 529 U.S. 473, 474 (2000). Here, the court agrees with Magistrate Judge
14 Tsuchida’s conclusion that reasonable jurists could not debate whether the petition should 15 have been resolved differently and therefore DENIES Mr. Buzzard a certificate of 16 appealability. 17 IV. CONCLUSION 18 For the foregoing reasons, the court hereby ORDERS as follows:
19 (1) The court ADOPTS the report and recommendation (Dkt. # 10) in part; 20
21 7 If Mr. Buzzard obtains permission from the Ninth Circuit to file a successive habeas petition, he should file it as a new action. He should not file an amended petition in this action or 22 use the same case number because this action is being closed today. 1 (2) The court OVERRULES Mr. Buzzard’s objections (Dkt. # 11); 2 (3) The court DISMISSES Mr. Buzzard’s § 2254 habeas petition (Dkt. # 8)
3 without prejudice; and 4 (4) The court DIRECTS the Clerk to close this case and send copies of this order 5 to Mr. Buzzard and Magistrate Judge Tsuchida. 6 Dated this 14th day of October, 2022. 7 A 8 9 JAMES L. ROBART United States District Judge 10 11 12 13 14 15 16 17 18
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