The opinion of the court was delivered by: Theresa A. Goldner United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS AS SUCCESSIVE PETITION (Doc. 8)
ORDER TO FILE OBJECTIONS WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On March 14, 2008, Petitioner filed his petition. (Doc. 1). After the Court ordered Respondent to file a response, Respondent filed the instant motion to dismiss the petition on July 3, 2008, contending that Petitioner had previously challenged his conviction via a petition for writ of habeas corpus in this Court, and therefore, the instant petition was successive. (Doc. 8). Moreover, because Petitioner had failed to obtain permission from the United States Court of Appeals for the Ninth Circuit to file such a successive petition, the instant petition must be dismissed. On September 24, 2008, Petitioner filed his opposition to the motion to dismiss. (Doc. 13).
In his motion, Respondent alleges that Petitioner had challenged his state court conviction previously in case no. 1:05-cv-1283-AWI-SMS, and that, therefore, the instant petition was successive and must be dismissed in the absence of permission from the Ninth Circuit to proceed. (Doc. 8, p. 3). Respondent also contends that the issue itself is successive and must be barred. (Id.). Finally, Respondent contends that Petitioner's claim is barred by the holding in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989). Because the Court agrees with the first two arguments, the Court need not reach the Teague issue..
Under AEDPA's "gatekeeping" provisions, an applicant seeking to file a second or successive petition must obtain from the appropriate court of appeals an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A). In this jurisdiction, the appropriate court of appeals would be the Ninth Circuit Court of Appeals. Section 2244(b)(2) provides that a claim presented in a second or successive habeas corpus application under § 2254 that was not presented in a prior application shall be dismissed unless--
A court of appeals may grant such an order only upon a showing that:
(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 underling the claim, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2)(A)-(B).
In case no. 1:05-cv-01283-AWI-SMS ("05-1283"), filed on ...