Portee v. Koenig
3:19-cv-02948
N.D. Cal.Aug 6, 2019Background
- Petitioner is a California prisoner convicted in 1982 in Santa Clara County and sentenced to life in prison.
- He filed a pro se federal habeas petition under 28 U.S.C. § 2254 alleging that judges who issued his arrest/search warrants and presided over his preliminary hearing lacked oaths of office.
- Court notes heightened pleading requirements for § 2254 petitions and that notice pleading is insufficient.
- Records show petitioner has filed multiple prior habeas petitions in this district.
- The petition appears either successive under 28 U.S.C. § 2244(b) or untimely under the AEDPA one‑year statute of limitations.
- Court dismissed the petition with leave to amend, directing petitioner to (a) show the claim is not successive or obtain Ninth Circuit authorization, or (b) demonstrate the petition is timely; failure to amend may result in dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition is successive | Koenig contends her petition raises a new claim about judges lacking oaths of office | Respondent argues the claim is successive because petitioner previously challenged the conviction | Court: Dismissed with leave to amend; petitioner must show claim is not successive or obtain 9th Cir. authorization |
| Whether the petition is time‑barred under AEDPA | Koenig argues the substantive defect (no oaths) supports federal relief despite age of conviction | Respondent argues AEDPA § 2244(d) one‑year limitation (and April 24, 1997 deadline for pre‑AEDPA convictions) likely bars the petition | Court: Directed petitioner to demonstrate timeliness or why equitable tolling/other exception applies; otherwise petition may be dismissed |
Key Cases Cited
- Rose v. Hodges, 423 U.S. 19 (brief statement of § 2254 standing and habeas scope)
- McFarland v. Scott, 512 U.S. 849 (heightened pleading requirements for habeas petitions)
- Aubut v. Maine, 431 F.2d 688 (notice pleading insufficient in habeas context)
- Patterson v. Stewart, 251 F.3d 1243 (deadline for prisoners with convictions finalized before April 24, 1996)
- Martinez v. Johnson, 104 F.3d 769 (Rule 41(b) dismissal for failure to prosecute applies in habeas cases)