The opinion of the court was delivered by: BARBARA MAJOR, Magistrate Judge
REPORT AND RECOMMENDATION FOR ORDER GRANTING RESPONDENT'S MOTION
TO DISMISS HABEAS PETITION AS A SUCCESSIVE PETITION [DOC. NO. 15]
This Report and Recommendation is submitted to United States
District Judge Napoleon A. Jones pursuant to 28 U.S.C. § 636(b)
and Local Civil Rule HC.2 of the United States District Court for
the Southern District of California.
The instant Petition is not the first Petition for Writ of
Habeas Corpus that Petitioner Robert E. Wright has submitted to
this Court challenging his 1994 Imperial County Superior Court
conviction for lewd and lascivious acts with a child under the
age of fourteen in violation of California Penal Code 288(a).
Accordingly, for the reasons set forth below, this Court
recommends that Respondent's Motion to Dismiss Habeas Petition as
a Successive Petition be GRANTED. PRIOR FEDERAL HABEAS PETITION DENIED ON THE MERITS
On March 10, 1997, Petitioner filed a Petition for Writ of
Habeas Corpus in this federal district court in case No.
97cv0392-IEG (JFS). Doc. No. 1 in case No. 97cv0392-IEG (JFS). In
that petition, Petitioner challenged his 1994 Imperial County
Superior Court conviction. Id. On June 27, 1997, the Court
dismissed the petition without prejudice, explaining that
Petitioner had failed to exhaust all state judicial remedies.
Doc. No. 7 in case No. 97cv0392-IEG (JFS). Petitioner then filed
a voluminous habeas petition in the California Supreme Court,
which was denied on April 29, 1998 in a one-sentence order
referencing In re Swain, 34 Cal.2d 300, 304 (1949). Lodgments
6-7 in case No. 98cv1390-IEG (JAH).
After having exhausted all state judicial remedies, on June 3,
1998, Petitioner moved to re-open case No. 97cv0392-IEG (JFS).
Doc. No. 11 in case No. 97cv0392-IEG (JFS). On June 10, 1998, the
Court denied Petitioner's motion, but granted Petitioner leave to
re-file his petition under a new case number. Doc. No. 12 in case
No. 97cv0392-IEG (JFS).
Accordingly, on July 30, 1998, Petitioner filed a Petition for
Writ of Habeas Corpus in this Court in case No. 98cv1390-IEG
(JAH). Doc. No. 1 in case No. 98cv1390-IEG (JAH). On March 31,
1999, Magistrate Judge John A. Houston issued an initial Report
and Recommendation, advising that the petition be dismissed as
barred by the applicable statute of limitations. Doc. No. 28 in
case No. 98cv1390-IEG (JAH). On July 15, 1999, however, the
district judge declined to adopt the Report and Recommendation,
instead remanding the matter for further proceedings in light of
the Ninth Circuit's holding in Nino v. Galaza, 183 F.3d 1003,
1006 (9th Cir. 1999) (instructing that the Antiterrorism and Effective Death Penalty
Act's ("AEDPA") "statute of limitations is tolled from the time
the first state habeas petition is filed until the California
Supreme Court rejects that petitioner's final collateral
challenge"). Doc. No. 37 in case No. 98cv1390-IEG (JAH).
Consequently, on December 27, 1999, Magistrate Judge Houston
issued a second Report and Recommendation, this time proposing
that the petition be found timely, but ultimately recommending
that it be dismissed as unexhausted because one of Petitioner's
claims had not been sufficiently presented to the California
Supreme Court. Doc. No. 47 in case No. 98cv1390-IEG (JAH). On May
10, 2000, Judge Gonzalez adopted the Report and Recommendation in
part, determining that the petition was timely, and modified it
in part, finding that Petitioner had adequately presented all
claims to the state's highest court. Doc. No. 58 in case No.
98cv1390-IEG (JAH). As such, the court remanded the matter to
Magistrate Judge Houston for adjudication on the merits. Id.
On December 18, 2000, Magistrate Judge Houston issued a third
Report and Recommendation, addressing the merits of Petitioner's
claims and recommending that the Court deny the petition in its
entirety. Doc. No. 70 in case No. 98cv1390-IEG (JAH). Petitioner
filed objections to the Report and Recommendation on January 23,
2001. Doc. No. 72 in case No. 98cv1390-IEG (JAH). Nevertheless,
on July 10, 2001, the Court adopted the Report and
Recommendation, and denied the petition with prejudice. Doc. No.
73 in case No. 98cv1390-IEG (JAH). The Court also refused to
issue a certificate of appealability, noting that Petitioner
failed to make a substantial showing that he had been denied a
constitutional right. Id. (citing 28 U.S.C. § 2253(c)(2); Lambright v. Stewart,
220 F.3d 1022 (9th Cir. 2000)).*fn1
On June 8, 2005, Petitioner filed an additional habeas petition
in this federal district court in case No. 05cv1187-IEG (BLM).
Doc. No. 1.*fn2 In this most recent petition, Petitioner
again challenged his 1994 convictions in Imperial County Superior
Court. Id. On September 23, 2005, Respondent filed a motion to
dismiss the petition, alleging that because Petitioner failed to
obtain permission from the Ninth Circuit to file a successive
petition, the petition must be dismissed as improper under
28 U.S.C. § 2244(b)(3)(A). Resp.'s Mot. at 2-5. Petitioner opposed
the motion on October 14, 2005. See Pet.'s Opp. at 1-3, 5-6,
8-10. Although Petitioner's arguments in opposition are less than
clear, Petitioner seemingly argues that Respondent's motion to
dismiss must be denied because (1) he was previously granted
leave to re-file his habeas petition under a new case number
after having exhausted all state judicial remedies, and therefore
had no reason to believe he could not re-file the instant
petition after his petition in case No. 98cv1390-IEG (JAH) was
denied on the merits, and (2) he contends that the instant petition alleges new
facts*fn3 important to the public welfare, namely, the
alleged violation of provisions of the United States
Constitution, the United States Code, and the California Penal
Code,*fn4 which must be resolved quickly on the
merits.*fn5 See id. at 2-3, 6. INSTANT PETITION BARRED BY GATEKEEPER PROVISION
Title 28 U.S.C. § 2244(b) provides that
(1) [a] claim presented in a second or successive
habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive
habeas corpus application under section 2254 that was
not presented in a prior application shall be
(A) the applicant shows that the claim relies on a
new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable; or
(B) (i) the factual predicate for the claim could not
have been discovered previously through the exercise
of due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.
28 U.S.C. § 2244 (b) (1)-(2). As such, 28 U.S.C. § 2244(b)
requires the dismissal of a successive petition unless "the claim
relies on a new rule of constitutional law" or "the factual
predicate for the claim could not have been discovered previously
through the exercise of due diligence." 28 U.S.C. §§ 2244 (b) (2)
(A) and (B) (i)-(ii); see also Moore v. Reno,
185 F.3d 1054
, 1054 (9th Cir. 1999) (per curiam). However, before the
court addresses the requirements of section 2244(b)(1) and (2),
the court must verify that Petitioner has satisfied the
"gatekeeper" requirements of section 2244 (b) (3). Title
28 U.S.C. § 2244 (b) (3) "creates a `gatekeeping' mechanism for the
consideration of second or successive applications in district
court." Felker v. Turpin, 518 U.S. 651, 657 (1996). It requires
that [b]efore a second or successive application permitted
by this section is filed in the district court, the
applicant shall move in the appropriate court of
appeals for an order authorizing the district court
to consider the application.
28 U.S.C. § 2244 (b) (3) (A); see also Felker,
518 U.S. at 657, 664 (explaining that under 28 U.S.C. § 2244 (b) (3) (A), a
habeas petitioner must obtain leave from the appropriate court of
appeals before filing a second habeas petition in the district
court). In this case, there is no evidence indicating that
Petitioner either requested or obtained permission from the Ninth
Circuit to file a successive habeas petition. Because Petitioner
has failed to satisfy the AEDPA's gatekeeper provision, this
Court may not consider Petitioner's successive petition.
28 U.S.C. § 2244 (b) (2) (A)-(B). Accordingly, Respondent's Motion
to Dismiss Habeas Petition as a Successive Petition should be
granted and the case dismissed.
Because there is no evidence that Petitioner has obtained
permission from the Ninth Circuit Court of Appeals to file a
successive petition, this Court cannot consider his petition.
Accordingly, IT IS HEREBY RECOMMENDED that the Court issue an
Order: (1) approving and adopting this Report and Recommendation;
(2) granting Respondent's Motion to Dismiss Petition as a
Successive Petition; and (3) dismissing this action in its
entirety without prejudice to Petitioner filing a petition in
federal district court should he obtain the necessary order from
the Ninth Circuit Court of Appeals. IT IS ORDERED that no later than December 2, 2005, any
party to this action may file written objections with the Court
and serve a copy on all parties. The document should be captioned
"Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall
be filed with the Court and served on all parties no later than
December 23, 2005. The parties are advised that failure to file
objections within the specified time may waive the right to raise
those objections on appeal of ...