Hernandez v. Beard

3:16-cv-00470 | S.D. Cal. | Aug 10, 2016

Case 3:16-cv-00470-BEN-JMA Document 15 Filed 08/10/16 PageID.107 Page 1 of 2 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA FRANCISCO RENE Case No.: 16CV0470-BEN(JMA) HERNANDEZ,

ORDER DENYING Petitioner, PETITIONER'S MOTION TO v. SHOW THE COURT EVIDENCE (DOC. NO. 13)

JEFFERY BEARD, Secretary, Respondent. Petitioner has filed a motion requesting he be permitted to present evidence that he was not informed of his Miranda rights when he was interrogated by Detective Garcia on November 20, 2008. [Doc. No. 13.] On August 3, 2016, the undersigned issued a Report and Recommendation, recommending this Petition for Writ of Habeas Corpus ( Petition ) be dismissed on the basis it is second and successive to Hernandez v. Beard, 12-CV-1682- BEN(DHB). [Doc. No. 14.] As discussed in the Report and Recommendation, both petitions for writ of habeas corpus challenge Petitioner’s August 4, 2009 conviction in San Diego County Superior Court Case No. SCE286092 and Petitioner has not obtained the requisite authorization from the Ninth Circuit to file / / [1] 16CV0470-BEN(JMA) Case 3:16-cv-00470-BEN-JMA Document 15 Filed 08/10/16 PageID.108 Page 2 of 2 1 this second petition or alleged any facts to establish his new Petition satisfies the requirements of 28 U.S.C. § 2244(b)(2).

The evidence Petitioner seeks to profer appears to be directed not to the claims he makes in this case, but rather to the second claim in his earlier filed case, in which he argued Detective Garcia failed to “Mirandize” Petitioner, in violation of his Constitutional rights, and which was denied by District Judge Roger T. Benitez on October 16, 2013. [1] Hernandez, 12-CV-1682-BEN(DHB) [Doc. No. 4, p. 7 of 108 and Doc. No. 35.] Furthermore, even if the evidence Petitioner now seeks to introduce relates to the claims he raises in this case, the undersigned has recommended dismissal of this Petition . Petitioner’s motion to present evidence in support of his claim Detective Garcia failed to inform Petitioner of his Miranda rights is, therefore, DENIED. Dated: August 10, 2016

NOTES

[1] In this case, Petitioner argues: (1) the San Diego Superior Court Judge failed to submit a waiver in open court 27 to transfer Petitioner’s case to the East County Court; (2) the p rosecutor failed to obtain a waiver from Petitioner after transferring his case to East County Court; (3) the court failed to arraign Petitioner within 48 hours of arrest; and (4) Detective Garcia failed to inform San Diego County Jail of Petitioner’s pend ing charges of robbery, 28 resulting in a failure to rebook Petitioner on the robbery charges.

[2] 16CV0470-BEN(JMA)