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United States District Court

Eastern District of California

Demetrius Henderson,

Petitioner No. Civ. S 04-2416 LKK PAN P

vs. Findings and Recommendations

D. L. Runnels, et al.,

Respondents.

-oOoPetitioner is a state prisoner seeking a writ of habeas

corpus. See 28 U.S.C. § 2254. Respondents move to dismiss upon

the ground the petition is second or successive. Petitioner

filed no opposition.

Before a federal district court may entertain a second or 

successive petition, the petitioner must obtain permission from

the appellate court. 28 U.S.C. § 2244(b)(3)(A). A petition is

second or successive if it presents claims that were or could

have been adjudicated on the merits in an original petition.

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Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001). A

dismissal is “on the merits” if the petitioner cannot return to

federal court to challenge the judgment in question. See

Henderson v. Lambpert, 396 F.3d 1049 (9th Cir. 2005) (petition

second or successive where previous petition denied for

petitioner’s default of a state procedural rule).

Petitioner challenges his August 4, 2000, conviction of

stalking for which the trial court on November 2, 2000, imposed 

a two-year prison sentence but suspended execution of the

sentence on the condition petitioner successfully complete three

years’ probation. Petitioner alleges his plea was involuntary

because counsel advised petitioner he would be found guilty at

trial because he is black, counsel failed to inform petitioner

the victim was mentally ill, recanted her allegations and offered

to testify in petitioner’s favor, and counsel refused to talk to

petitioner, lied to petitioner and refused to obtain a statement

from the victim. Petitioner also alleges the trial judge denied

him the right of appeal by telling petitioner he did not want to

see petitioner in court again. 

Petitioner previously challenged the same conviction in case

number Civ. S 03-1474 LKK PAN P. Petitioner alleged his plea was

involuntary because counsel refused to obtain a statement from

the victim, told petitioner the victim would testify for the

prosecution, refused to move to recuse the judge and refused to

talk to petitioner. He also alleged he would not have entered

the plea of guilty if he had known a condition of parole would be

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not to have contact with the victim. This court dismissed the

petition as untimely. 

 Petitioner’s claim in the November 12, 2004, application

that his plea of guilty was involuntary as a result of

incompetence of his trial counsel was presented in the earlier

application and to the extent they are any different his current

claims could have been included in the earlier petition. 

I find the November 12, 2004, application is second or

successive and petitioner has not obtained leave from the

appellate court to make such an application. See Copper, 274

F.3d at 1273 (“Because Cooper was aware of the factual predicate

of this claim long ago and could have raised the claim in his

first petition, his claim is “second or successive.”)

I therefore recommend this action be dismissed.

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Within 20 days after being

served with these findings and recommendations, petitioner may

file written objections. The document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” 

The district judge may accept, reject, or modify these findings

and recommendations in whole or in part.

Dated: June 7, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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