California Court of Appeal Dec 17, 2014 No. E056235Unpublished
Filed 12/17/14 Husser v. Busby CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JOHN H. HUSSER,
Plaintiff and Appellant, E056235
v. (Super.Ct.No. INC1104820)
TIMOTHY H. BUSBY, Warden of OPINION Ironwood State Prison,
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Randall Donald White,
Judge. Dismissed.
John H. Husser, in pro. per., for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Jennifer A. Neill, Senior Assistant Attorney
General, Phillip Lindsay, and Gregory J. Marcot, Deputy Attorneys General, for
Defendant and Respondent.
1
John H. Husser appeals from an order denying his petition for writ of mandate and
declaratory relief (mandate petition). In his mandate petition, he alleged that officials at
Ironwood State Prison (ISP) under the direction of Warden Timothy H. Busby
improperly put an indefinite hold on his inmate trust account (ITA) against future
deposits for payment of legal copies and postage paid by the prison while he was
indigent. He insisted that under California Code of Regulations, title 15, sections 3138
and 3162, the officials could not put an indefinite hold on his account. He sought release
of his ITA as he insists he was not responsible for payment of the copies or postage.
The trial court denied his claims on the merits without hearing oral argument. The
trial court refused to find that the mandate petition was successive even though Husser
had raised the same claims in a prior petition for writ of habeas corpus and/or petition for
writ of mandate and declaratory relief (prior superior court petition) that he had filed in
the superior court. Husser appeals the trial court’s order on the grounds that (1) the trial
court erred and denied his right to a fair trial by refusing to hear oral argument on the
mandate petition; and (2) there was no substantial evidence to support the trial court’s
findings on the merits.
We would have addressed Husser’s claims (and Busby’s response) had we failed
to discover that this is not the first time that Husser has raised these exact claims in this
court. Husser filed an original petition for writ of habeas corpus and/or petition for writ
of mandate and declaratory relief in this court in case Number E052435 (E052435
2
petition) after he filed the prior superior court petition.1 We denied that petition on its
merits. Accordingly, we dismiss the instant appeal on the basis that Husser’s claims have
been raised and rejected in an earlier proceeding in this court, and he has failed to allege
any changed facts or law that would justify a successive petition on the same ground.
I
FACTUAL AND PROCEDURAL BACKGROUND
Husser is currently serving a thirty-years-to-life sentence for two counts of murder
for which he was convicted sometime in 1999.2 His claims in the instant appeal do not
pertain to the validity of this conviction.
On June 10, 2011, Husser filed the mandate petition in the superior court. His
causes of action included that all holds on his ITA against future deposits for payment of
copies and postage provided to him for the period of October 2008 through February
2009 should be released because they were all for legal matters. His prayer for relief
included that the hold on his account should be released.
He provided as supporting facts that there had been no money in his ITA since
2005. Despite having no money, he had incurred postage and copying costs on October
30, 2008, October 31, 2008, November 4, 2008, February 18, 2009 and February 24,
2009. He alleged these costs pertained to legal matters he was pursuing. In his mandate
petition, he acknowledged he had filed the prior superior court petition raising the
1 We take judicial notice of the file in case Number E052435 on our own motion. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) 2 Husser’s claims arose while he was housed at ISP but it appears that he has since been moved to another facility.
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identical claims. He also noted in passing that “a follow-on habeas petition was filed to
the appropriate appellate court, raising the same substantive claims.” He claimed he had
lost all of the copies of the previous petitions. The exhibits to the mandate petition
included the administrative hearings held at ISP and his ITA balance.
Busby filed a response. Busby argued that the mandate petition should be
dismissed as successive based on the prior superior court petition. Further, it should be
denied due to delay in presenting the claims. The denial of the prior superior court
petition was included as an exhibit; it included a denial on the merits and that “this Writ
of Habeas Corpus proceeding is not the forum to combine other requests such as a
Petition for Writ of Mandate or Declaratory Relief.” Busby also included as an exhibit
the order of this court denying the E052435 petition but not the petition itself. That order
stated, “The petition for writ of habeas corpus and/or mandate is DENIED.”
At a hearing conducted on February 27, 2012, the trial court initially denied that
the mandate petition was successive based on the filing of the prior superior court petition
presumably deciding that the prior superior court petition was not decided on its merits.
The parties were instructed to submit briefing on the merits of the mandate petition.
After further briefing by both parties, the matter was heard on March 26, 2012.
The parties appeared telephonically. The trial court noted that neither of the parties had
requested oral argument as required by the local rules. Husser objected but the trial court
refused oral argument. It ruled, “The tentative is to deny. The petitioner has failed to
state exactly what reimbursement was required, and that will be the order of the court.”
4
On April 30, 2012, Husser filed a notice of appeal from the denial of his mandate
petition.
II
SUCCESSIVE ACTION
The claims that Husser raises in this appeal from the mandate petition are identical
to those raised in the E052435 petition which we have already concluded did not entitle
him to relief.3 As such, the appeal should be dismissed as successive.
A. Additional Factual Background
In his opening brief, Husser claims that he was litigating two cases in 2008 and
2009 while housed at ISP; he needed envelopes, postage and copying for these cases. He
obtained postage and copying on October 30, 2008, October 31, 2008, November 4,
2008, February 18, 2009, and February 24, 2009 and the cost was approximately $20. He
had no money in his ITA account and a hold was placed on his account against future
deposits. Citing to California Code of Regulations, title 15, section 3138, he insisted
there should not be a hold on his account for the copying of documents related to his
legal matters.4
3 We note that Busby has argued that the mandate petition should have been found to be successive by the trial court based on the prior superior court petition. Busby does not discuss the E052435 petition. 4 California Code of Regulations, title 15, section 3138, subdivision (a) provides that “Upon an indigent inmate’s request, writing paper, envelopes, a writing implement, and the postage required for five 1-ounce First-Class letters per week shall be supplied.” Subdivision (h)(1) provides that “Upon request, institutions shall also provide indigent inmates free copying of the legal documents limited to the number of copies of a document required by the court, plus one copy for the opposing party and one copy for [footnote continued on next page]
5
We have reviewed the E052435 petition. It also alleged that he had been indigent
since 2005 and had incurred postage and copying charges on October 30, 2008, October
31, 2008, November 4, 2008, February 18, 2009, and February 24, 2009. His cause of
action requested a release of the hold on his ITA account for payment of the above
copying and postage costs. He relied on the aforementioned provisions of the California
Code of Regulations. He argued that some type of writ - - be it a writ of mandate or writ
of habeas corpus - - should issue. As set forth ante, this court denied the E052435
petition.
B. Analysis
“When a habeas corpus petition is denied on the merits, the court has determined
that the claims made in that petition do not state a prima facie case entitling the petitioner
to relief.” (In re Clark (1993) 5 Cal.4th 750, 770 (Clark).) “It has long been the rule that
absent a change in the applicable law or the facts, the court will not consider repeated
applications for habeas corpus presenting claims previously rejected. [Citations.]”
(Clark, at p. 767; see also In re Walker (2007) 147 Cal.App.4th 533, 548.) The Clark
court explained, “Successive petitions [] waste scarce judicial resources as the court must
repeatedly review the record of the trial in order to assess the merits of the petitioner’s
claims and assess the prejudicial impact of the constitutional deprivation of which he
complains. [¶] Willingness by the court to entertain the merits of successive petitions
[footnote continued from previous page] the inmate’s records.” Subdivision (h)(3) provides, “A charge shall not be placed against future deposits to the inmate’s trust account to recover the cost of materials, copying and postage provided, while the inmate was indigent.”
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seeking relief on the basis of the same set of facts undermines the finality of the
judgment.” (Clark, at p. 770.)5
Here, Husser’s claims presented in both the appeal and the E052435 petition are
identical. This court has already denied the claims on their merits. (See Clark, supra, 5
Cal.4th at p. 769, fn. 9 [“The denial of a habeas corpus petition without issuance of an
order to show cause, often referred to as a “summary denial,” does not mean that the
court has not considered the merits of the claims. Unless a procedural bar is apparent, the
court will determine whether the petition states a prima facie case for relief, i.e., whether
it states facts which, if true, entitle the petitioner to relief. [Citation.]”].) As such, the
opening brief raises issues already raised and rejected by this court.
Husser did not allege a change in the facts or law applicable to his claims in his
opening brief that would excuse the filing of this successive action. We allowed Husser
to file written oral argument. He now insists that he has new facts that would warrant a
successive petition. However, the facts provided by Husser that his ITA has actually had
money deducted from it does not change the legal claims that he has raised in his petition
and the prior petition. The fact that in place of a hold on his account, the money has been
taken out, does not constitute new facts warranting a successive petition. Moreover, this
case does not involve any fundamental miscarriage of justice warranting an exception to
5 The fact that this case involves a prior petition for writ of habeas corpus and/or petition for writ of mandate, and an appeal, does not change the analysis or outcome. Regardless of the terminology, Husser is attempting to have this court rule on a matter that has already been decided.
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the rule against successive petitions. (Clark, supra, 5 Cal.4th at pp. 775, 797.) As such,
we dismiss the appeal.
III
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI Acting P. J.
We concur:
KING J.
MILLER J.
8
AI Brief
AI-generated · verify before citing
Holding. The court dismissed the appeal because the appellant's claims were identical to those raised and rejected in a prior proceeding before the same court, and the appellant failed to allege any changed facts or law to justify a successive petition.
Issues
Whether the appellant's claims regarding his inmate trust account are barred as a successive action.
Whether the trial court erred in denying the petition without oral argument.